New York City police suspected Theodore Payton of murdering a gas station manager. The police forcibly entered Payton's home thinking he was there (he was not) and found evidence connecting Payton to the crime, which was introduced at Payton's trial. The police lacked an arrest warrant when they entered his home. However, they acted under a New York law allowing police to enter a private residence to make a felony arrest without a warrant. At trial, Payton unsuccessfully sought to suppress the evidence as the fruit of an illegal search. State courts upheld. In the companion case, victims identified Obie Riddick in June 1973 for robberies in 1971. Police learned of his whereabouts in 1974. Without a warrant, they knocked on his door, entered his residence and arrested him. A search for weapons revealed illegal drugs. He was indicted on narcotics charges but sought the suppression of the evidence based on a warrantless entry. The trial judge concluded that the entry was authorized by the New York law and that the search was therefore permissible. Riddick was convicted. The appeals court affirmed.

Question

Does New York statute authorizing warrantless arrests and searches violate the Fourth Amendment prohibition against unreasonable searches and seizures?

Yes. Justice John Paul Stevens, writing for the 6 to 3 majority, held that the Fourth Amendment, as applied to the states by the Fourteenth Amendment, "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Warrantless arrests and searches went to the core of the Fourth Amendment's protection of privacy in a citizen's dwelling. This protection was too important to be violated on the basis of a police officer's on-the-spot decision regarding probable cause. In the absence of special circumstances, a search of a residence is permissible only after a finding of probable cause by a neutral magistrate issuing a search warrant. Justice Byron R. White, joined by Chief Justice Warren E. Burger and Justice William H. Rehnquist, dissented. White maintained that common law and practice prior to and at the time the Fourth Amendment was adopted did not limit a police officer's inherent power to arrest or search.

Chief Justice Warren E. Burger: We'll hear arguments next in Payton against New York and Riddick against New York.

Mr. Hellerstein, I think you may proceed when you are ready.

Mr. Hellerstein: Mr. Chief Justice, and may it please the Court.

These cases are before the Court on appeal from the New York Court of Appeals, which by a vote of four-to-three sustained the former and present New York arrest statutes which allow arrest entries even in the absence of non-exigent circumstances into the home and permit nonconsensual and forcible entries for the purpose of arrest.

Two cases before the Court present the statutes in two virtually kind of apprehensive applications.

In the Payton case, you have the forcible, and I would say extremely forcible entry without a warrant, namely the breaking down of Mr. Payton's door with crowbars.

In the Riddick case, you have a nonconsensual but an entry with less force and I would say not exactly force, namely the knocking on a door, the opening of a door by a three year old boy, the entry to arrest and the placing of the defendant, who was in bed, under arrest.

The facts leading up to both of these cases, in the Payton case, a homicide in the cause of robbery had been committed on January 12, 1970 in the service station in Manhattan's Upper East Side.

Investigation at the scene led to the discussion of investigating officers with witnesses to two days later, the officer learning the name of Mr. Payton.

One of the informants or people who spoke with the officer took the police on January 14, two days after the crime, sometime in the afternoon.

Took the officer to Payton's building in the Bronx and pointed out his apartment to him.

That detective, Detective Malfer, the investigating detective made no effort at that time to arrest the defendant.

Instead he came back and the following morning and a company --

Chief Justice Warren E. Burger: Would it make a difference to your position if he had made the arrest with these steps right then and there?

Mr. Hellerstein: I think it would be a tougher case for us Mr. Chief Justice, I think it would -- because then in the course of that ongoing situation, it might be argued by the prosecution that the circumstances were exigent in the sense that at the very first moment that Detective Malfer learned where a suspected felon for which he had probable cause lived, he might then have possibly consummated the arrest.

But that's not what happened and I think that's --

Justice William H. Rehnquist: Judge Walker felt that way in the Court of Appeals.

Mr. Hellerstein: Judge Walker was the only judge Mr. Chief -- Mr. Justice Rehnquist, who felt that way, who felt that this -- and it was a continuous pursuit.

I would submit that the concept continuous pursuit is still not exactly an exigent pursuit, a pursuit in exigent circumstances.

But I don't think you don't even have to agree with Judge Walker.

I think that the concept of continuous pursuit, in the Chief Justice' question, if that were the case would make it a tougher case.

I would not necessarily concede to the circumstances was still exigent, but that's not this case.

The fact of the Payton case is that not having done that.

The officers -- the officer chose to wait until the following morning, some 12, 14 hours later.

When accompanied by other officers, attempted to enter Payton's apartment and not being able to do so still took additional time to call for assistance by a call to the emergency services division of the police department who came with crowbars and broke the apartment open, the door of the apartment open.

And Mr. Payton was not there, and even though Mr. Payton was not there, the officers ransacked the apartment, searched in cupboards, drawers, closets, under the mattress knowing he was not there.

Everything that was found was suppressed on consent by the district attorney because it was of course illegally seized in an unlawful search.

The one item of evidence that was not suppressed was a .30 caliber shell casing that was found ostensibly in plain view by Detective Malfer and was matched shell casings found in the scene of the crime.

The trial court and ultimately the Court of Appeals by a four-to-three vote sustained the admissibility of that shell casing on the ground that the officers were lawfully on the premises to consummate an arrest under New York's then Code of Criminal Procedure, Sections 177 and 178, they could break and enter without a warrant.

The Riddick case somewhat different in the sense that the officers had probable cause to believe Mr. Riddick had committed a robbery.

In 1971, they had probable cause at least two months before they went to his apartment.

Or I should say they learned his address two months before they went to his apartment.

They had probable cause around earlier.

The arrest in Riddick was extremely typical.

No great hurry, despite what the prosecution would call a violent crime.

They knew where Mr. Riddick was and waited two months.

Prosecution concedes that there was nothing at all negligent about the Riddick case.

That brings before the Court the issue of the constitutionality of the statute.

The Court of Appeals by a majority vote, I think placed its emphasis on three concepts or items.

The first that an arrest entry is a much more substantial intrusion than an entry for the purpose of a search for which this Court has required warrants and that the history of a common law with respect to arrest entries was extremely well settled and clear and supported the Court's decision.

The Court also placed an emphasis on the existence of statutes similar to New York's and many states and upon the proposal of the American Law Institute not recommending a warrant be obtained in these particular circumstances.

It is our submission that the Court erred on all three respects.

Justice Potter Stewart: Mr. Hellerstein, you said of the three factors, you said one of them was that the court's view that an arrest entry was more intrusive or less intrusive?

Mr. Hellerstein: Less intrusive.

Justice Potter Stewart: That's what I thought.

Mr. Hellerstein: Yes, I'm sorry if I'm mistaken, it was less intrusive.

I think the logical starting point for our argument must be the plurality opinion of this Court in Coolidge where at that time four members of the Court expressed a view that a warrantless entry into a person's home to arrest was at odds with the warrant requirement of the Fourth Amendment, the per se requirement for searches.

Justice William H. Rehnquist: When you use the term entry, Mr. Hellerstein, supposing that in the Riddick case for example the police had come up the steps onto a porch and the door had been open and hadn't been or it was shut and then opened by a three year old, and simply on the steps they had seen Riddick in the house, in the room and in bed as he was, would that be an entry?

Mr. Hellerstein: Yes, Mr. Justice Rehnquist.

I believe it would.

It might be the most peaceable entry, but it would definitely be an entry.

I think they would have had to obtain permission to cross the threshold and come into Mr. Riddick's room.

I think the views expressed in Coolidge hopefully will be able to support the conclusion of our argument.

I think that there is one interest that has predominated this Court's decisions both in holding and in dicta as I read them.

It is that the expectation of privacy within the home is the highest of its kind that there is nothing more sanctified, in our constitutional system both historically and juridically, and that the privacy of the home is paramount.

It is a place where people repair, to enjoy in their utmost, their thoughts, their personal feelings, their family life and although in Katz the Court spoke of the Fourth Amendment of protecting people not places.

I believe that was supplemental to the notion that the home is a place where the privacy interest is at its highest.

Without his background and I'm not so sure that the prosecution if -- even disagrees with what I've said to that point.

The Court of Appeals I think erred grievously in about seven different respects in concluding that an arrest entry was less substantial than one for purposes of the search.

When police enter private premises, that entry first of all affects everybody in the premises, there's family, children.

The manner of the entry is not designed to ensure the privacy of the people within or to minimize the intrusion on their privacy.

I think we've pointed out in our briefs that actual manuals by recognized experts, police conduct and practice point out the nature of the way that entry should be made.

Justice William H. Rehnquist: But -- but what again if you have the door open and the people simply doing whatever they're doing in the front room with obviously no intent to conceal it.

The windows are open, the door is open anyone walking on the sidewalk can see it?

Mr. Hellerstein: I don't know how common that would be Mr. Justice Rehnquist.

If the problem is that people who open the door expose what is within to the -- open eye, they are responsible for minimizing their privacy, but that might be impossible with respect to a search.

But to arrest, the entry is the key.

It is the crossing of the premises.

Now there may not be the kind of intrusion in that particular situation that would be the most minimal, but there is nonetheless the intrusion, also the police may still enter in the same way they would've if they had to go to the door and knock it or break it down in the force of four or five perhaps.

Both Riddick and Payton exemplary cases of more than one officer going, they might still enter even though the door will open, fan out, conduct the protective sweep which is recommended by the authorities and which I think is rather a common place, and that is a substantial intrusion.

It's a substantial intrusion because in conducting a fan out or a protective sweep, there is immediately open to view of the police whatever items, supposedly personal items the occupants of the premises have, and I would say that even conducting a search incident to that arrest is nonetheless a search of a good deal of intensity.

The search of a person, in your hypothetical Mr. Justice Rehnquist, if the suspect is not in the room that's open to view and even though the entry is across a threshold without the breaking of a door, but the suspect say is in a backroom or in the Warden case where -- Warden versus Hayden, where the court saw a search for a person that covered a multi-room house.

That can be also an extensive search for a person.

Justice Potter Stewart: Including a washing machine in that case, wasn't it?

Mr. Hellerstein: I believe it was Mr. Justice Stewart.

So as a general proposition, I think the intrusion for purposes of arrest are not minimal and they are not less than a search.

In fact I would submit that there are occasions when an entry for search can be far more -- far less intrusive.

In the two cases before the Court, I don't think you can conclude that there was a minimal intrusion of any kind.

For these types of intrusions, we submit that a warrant should be required, that there is nothing in the interest of law enforcements to preclude or to cut against requiring a warrant in these two situations.

The last decision of this Court dealt with the subject of warrants for arrest of course was the Watson case.

And this Court predicated its decision, as I read it, for dispensing with a warrant on several factors.

The publicness of the arrest to -- with the liberty interest was not so substantial.

I think the Court of Appeals below in majority pointed to that.

But in this case or these cases you have what is the privacy interest as well.

But it was a case in which Mr. Justice Powell said that there were times that logic must refer to history and experience.

And because the history and experience of the common law with respect to public arrests was what it was in Watson, the Court felt that warrant should not be required for non-exigent public -- for any public arrests.

So we respectfully submit and I think we've try to in great length in our brief to establish that the common law with respect to entries into the home to arrest without a warrant was a bird of a different color.

In fact I believe the Court, opinion by Mr. Justice Brennan in Miller versus United States pointed first citing with approval Judge Prettyman's decision in Accarino versus United States which held that you would had to have a warrant to enter but as a minimal proposition pointed out to the disarray among the common law sources with respect to entries without a warrant.

Mr. Hellerstein: The Miller case was under 3109 of Title 18, Mr. Chief Justice, and it did involve the issue of knocking, announcing that -- but in the course of the Court's analysis as to the knock and announce statute, the common law sources with respect to the general proposition of entry without warrants was examined and pointed out to be insubstantial disarray.

In that disarray, we believe it does not afford the Court the freedom nor should it to conclude that the Watson line of analysis would be appropriate.

The disarray continued beyond the common law into the 19th century.

And of course a number of stat -- states passed statutes similar to ours not requiring warrants.

Interestingly, once Courts begun to look at these statutes and these practices under Fourth Amendment principles, the predominant overwhelming weight of lower court judicial authority, state and federal, has been to require warrants in non-error -- non-exigent circumstances.

The Second Circuit in United States against Reed in a recent decision which the Court of Appeals just did not feel it should follow so held, and the Courts of Appeals have predominated on that view.

The warrant requirement in the context of entries for home arrest will not impose any substantial legitimate burden of law enforcement.

If the circumstances are non-exigent there is no reason for law officials -- law enforcement officials not to obtain a warrant.

The basic concern of the prosecution is that in such a circumstance the requirement to obtain a warrant will preclude catching dangerous criminals quickly.

I believe Mr. Justice White in the Channel opinion, you also expressed that concern.

The fact of the matter is as I believe a test clause report which is cited on our brief of -- with respect to the President's commission on law enforcement initiation of justice, establishes that 50% of the arrest that are made throughout the country are made within two hours of the crime, 45% of the arrests, the remaining 45 are made a day after the crime.

That conclusion led the Government in its brief in Santana for example to say it could easily live with a requirement of two hours plus for a warrant.

And in the Government's brief in the Watson case itself, it pointed out that the FBI as a practice obtains arrest warrants whenever practicable because it is in the interest of the Government to secure a warrant, that the scrutiny as to probable cause that the dangers of losing evidence because of suppression are minimized by obtaining a warrant.

We submit that the arguments presented by the prosecution that this nonetheless will be a burden on law enforcement are not -- do not meet the actual test.

Justice Potter Stewart: After a grand jury indictment, is a warrant generally obtained in New York, or do they -- does it -- is it considered that the indictment is the equivalent of a warrant?

Mr. Hellerstein: There is generally as I understand it a warrant obtained after the indictment.

That's the only way in the present law in New York.

Now, it looks like this Mr. Justice Stewart, it is a document that says warrant of arrest, a bench warrant or warrant, and this -- it -- this is issued after an accusatory instrument.

This would be the Supreme Court warrant on a felony case.

This would be a criminal --

Justice Thurgood Marshall: This would have to go simultaneous.

Mr. Hellerstein: Pardon me?

Justice Thurgood Marshall: Simultaneous is not after it, it's simultaneous when the indictment is issued, that's issued at the same time --

Justice Potter Stewart: That's about the only time that in New York to warrant.

Mr. Hellerstein: Well, not necessarily.

Justice Potter Stewart: An arrest warrant is issued.

Mr. Hellerstein: Not necessarily.

In the sense that I have been informed that its been my experience at times police will go and get an arrest warrant occasionally.

But they of course have to have an accusatory instrument, so they'll go to the complaint room in and say in New York or Manhattan have the complaint drawn up, district attorney will accompany the police officer up to the bench and arraign in part and get an arrest warrant based on that accusatory instrument, piece of paper like that.

Justice Potter Stewart: Well, an affidavit generally is enough to support a warrant.

Mr. Hellerstein: Yes, but under New York law it must be an accusatory instrument.

Justice Potter Stewart: And what determines whether or not there will or will not be a warrant in a non-grand jury or non-bench warrant situation?

Mr. Hellerstein: I think what determines that is really the judgment of the police and most often has not obtained a warrant.

Mr. Hellerstein: Officer -- departmental procedures, there are no particular guidelines and it is rare, certainly in this context for a warrant to be obtained on the basis of -- I should say rare.

It's not the practice as I'm informed but perhaps --

Justice Potter Stewart: But sometimes it is done.

Mr. Hellerstein: Yes, sometimes.

Justice Potter Stewart: And this apparently just depends upon the whim of the policeman?

Mr. Hellerstein: Yes, as I understand it.

Argument of Peter L. Zimroth

Chief Justice Warren E. Burger: Very well Mr. Hellerstein.

Mr. Zimroth.

Mr. Zimroth: Mr. Chief Justice, may it please the Court.

The community, the societal interest that's at stake in this case, and this case is enormous.

We're talking about here is not simply gathering evidence but bringing the defendant to Court so that the civilizing processes of law can even be brought to bear on that case.

This is, I believe, one of the first requirements of any civilized society, the alternative to which is vigilante justice.

This fundamental interest that is to have a Court bring the processive law to bear has been recognized throughout history.

And that is why the judgment has been made throughout history that it is better not to impose a lawyerized process before the arrest and that's regardless of where the arrest takes place, but rather that it is better first to obtain custody of the defendant.

And then to construct a system whereby the defendant is given all the processes he is due.

And it is a very elaborate system.

The defendant must be brought to Court immediately after arrest.

The continued custody -- his continued custody is tested immediately.

Eventually, his guilt of innocence is tested.

And also, in this process there is a review of the arrest process itself.

We are not here suggesting that the Fourth Amendment has nothing to -- says nothing about the arrest process.

Of course it says a lot about the arrest process.

Justice Potter Stewart: And the question in this case is how much and what does it say?

Mr. Zimroth: That's exactly right.

Justice Potter Stewart: And what do you think it says?

Mr. Zimroth: I think what it says is that you have to show probable cause to make the arrest and also although this Court has not stated this is a constitutional matter, nonetheless most states in the common law history suggest that if this is going to be a forcible entry the Courts will, after the defendant is in custody, determine whether or not the police made every -- an attempt, the proper attempt to avoid the necessity for the forcible entry that is by knocking and announcing their authority.

And if the police behave unlawfully very, very severe consequences attach to that.

Justice Potter Stewart: Well, the question is what is unlawful, isn't it?

I mean that's the question of this case.

Mr. Zimroth: That's right.

Justice Potter Stewart: You concede there must be probable cause, and I gather you just conceded that there is a duty to minimize the forcibleness, forcibility of the entry and beyond that nothing for an arrest of a person inside his own house?

Mr. Zimroth: Well, I think that there might be special concerns in certain areas, that is if it were a nighttime arrest, I think it might be a special situation or if it were an arrest --

Justice Potter Stewart: Well now, requiring a additionally.

Mr. Zimroth: Excuse me?

Justice Potter Stewart: Well, if it were at nighttime, what additionally would be required by the constitution?

Mr. Zimroth: It is conceivable though no Court has so held, or the Court has not held, this Court has not held.

It's conceivable that in no circumstances this Court might impose a warrant requirement because if --

Justice Potter Stewart: Well, to say it -- the Court would only hold to the constitution imposes it.

Mr. Zimroth: That's right.

I'm saying that is conceivable that it -- all I'm trying to suggest that -- is that this case doesn't present that question of nighttime arrests.

I agree, that is the question, the question in this case is, is it a warrant required.

All I'm saying is that by saying a warrant is not required if the Court so holds that that is not the same saying the Fourth Amendment doesn't apply, that there are other protections that the Fourth Amendment imposes on this situation.

Justice Potter Stewart: I.e. there has to be probable cause?

Mr. Zimroth: That's right.

Justice Potter Stewart: And there has to be a minimumization of the enforcements?

Mr. Zimroth: That's right, and very severe consequences.

Also the exclusionary rule for one and tort actions for another.

And I'm suggesting that this is a debate that is that Mr. Hellerstein and I are having that has been a debate throughout history.

That is exactly the same terms of the debate.

That is the privacy of the home as opposed -- on the one hand, and on the other hand the tremendous public interest in bringing a suspected felon upon which -- about whom there's probable cause to believe that he's committed a felony to justice.

And the judgment of history which I think is relevant to the issue of whether or not the constitution requires a warrant has been uniform in this respect.

No prior judicial screening has been required.

Mr. Hellerstein says it is a big dispute at the common law and I think he's making it understandable but nonetheless apparent error in that respect.

And that is that there were disputes about what sort of showing the police officer had to make after the arrest.

Some of the common law authority said that all you had to do is show probable cause in order to relieve yourself of liability.

Others said that you have to show that a felony had actually been committed.

And a few said that you had to show that the defendant was actually guilty, but none of --

Chief Justice Warren E. Burger: When you said that's -- had to be an effort to minimize the use of force, are we to take that as meaning that you're drawing on the reasonableness, the term unreasonable in the Fourth Amendment?

Mr. Zimroth: Yes, I am Your Honor.

Chief Justice Warren E. Burger: Well then, you're going to the midnight search, 2 o'clock in the morning, when presumably most people have their house closed, they're asleep, what do you say about breaking down the door then?

Mr. Zimroth: I would have to say that it would depend on the case Your Honor, or I might --

Chief Justice Warren E. Burger: Well, just take that much, mid -- exactly your circumstances, midnight, 2 o'clock in the morning, every -- the house is dark, everyone is asleep.

Mr. Zimroth: I would have to say that in the circumstances of the Payton case, that that would be a reasonable entry because --

Chief Justice Warren E. Burger: Isn't there some case in which there was an observation made not by this Court but by -- perhaps one of the Courts of Appeals or State Supreme Courts says that that type of a breaking and entering might produce the deaths of some police officers --

Mr. Zimroth: Which is why I think the balance is a little different in that -- in the nighttime entry than it is in a daytime entry.

I should say that the judgment that I'm talking about, about the reasonableness of entering without a warrant is not only uniform throughout history, but it is the judgment made in most states today.

There are 36 states that have statutes on this subject and 30 of them --

Justice Lewis F. Powell: Counsel, if it's only in most states, how can it be uniform throughout history?

Mr. Zimroth: It has -- it has --

Justice Lewis F. Powell: Even the history up to a certain point in time?

Mr. Zimroth: Yes, they're up until relatively recently, until the Court's dictum in Coolidge.

And what happened after Coolidge is that many Courts in effect reserved on the issue.

They've said that, “We assume for the purposes of argument that a warrant would be required but we find exigent circumstances.”

Not all the courts say that but many of the ones cited by Mr. Hellerstein.

There is not a --

Justice Byron R. White: Well Mr. Zimroth, when you're talking about a -- the necessity for a warrant or when your colleague is talking about a warrant, is it an arrest warrant that you're talking about?

Mr. Zimroth: That's a basic ambiguity in this case.

Justice Byron R. White: Or is it not only an arrest warrant but a warrant to enter a house?

Mr. Zimroth: Most of the Courts, all but one I think, has -- that have held that they needed to be -- a warrant say that there need to be only an arrest warrant.

I think there's an ambiguity there and the difficulty.

This Court has already said that in Watson --

Justice Byron R. White: Well, you said all but one, what about the one?

Does the one say that there -- the warrant also has so authorized the entry?

Mr. Zimroth: Yes, Your Honor but that --

Justice Byron R. White: And must there then -- and to get that kind of a warrant, must you show probable cause to believe the person is in the house?

Mr. Zimroth: Yes.

Chief Justice Warren E. Burger: We'll resume there at 1 o'clock.

You can ponder on those questions.

Mr. Zimroth you may --

Mr. Zimroth: Your Honor --

Chief Justice Warren E. Burger: -- continue.

Mr. Zimroth: Mr. Hellerstein blindly assumes that there would be no serious practical consequences if this Court imposes a warrant requirement.

The basic problem with the warrant requirement is that it -- in essence that it imposes a review mechanism on a situation that in, it grows, in most cases or in many cases is very fluid and very volatile.

Chief Justice Warren E. Burger: Well, I didn't --

Mr. Zimroth: First --

Chief Justice Warren E. Burger: I didn't understand your friend to be suggesting that a warrant must be obtained in every case just because time would permit it.

Mr. Zimroth: Well, if I may say so Your Honor, he earlier this morning, he criticized the police in the Payton case for not in effect getting a warrant after the building was pointed out to them.

And I think if there were a warrant requirement there would be a pressure on them to get a warrant at that time.

Now, you might ask why didn't they get a warrant at that time assuming that there had been a warrant requirement.

At that time, first of all, they did not know that the defendant was there.

His building have been pointed out to him but they also had information someone had told the police that the defendant said he was going somewhere.

More important than that, they did not know what Mr. Payton looked like and they did not have his correct name.

Isn't it better for them to do what they in fact did do?

They took this witness back to the station house, they talked to him for a considerable length of time, they got photo arrays, they got pictures and the witness eventually pointed out Mr. Payton's photograph later in the evening.

Now it seems to me that that is an illustration of what will happen if there is a warrant requirement.

It will pressure the police to solidify their decisions before it is appropriate to do so.

The exigent circumstances exception that Mr. Hellerstein says will solve all these problems will not solve the problems.

And the reason it won't solve the problems are because the exigent circumstances exceptions --

Justice Thurgood Marshall: Well, just one question after you finished talking to this man did he then know who he wanted?

Mr. Zimroth: They knew the name -- they knew the correct name.

Justice Thurgood Marshall: Well, couldn't he have gotten a warrant?

Mr. Zimroth: They did not have -- they did not know -- they knew his address but they didn't know he was home.

Justice Thurgood Marshall: But what -- does the warrant say he's home?

Mr. Zimroth: No, the warrant didn't say he was home, but the point is that --

Justice Thurgood Marshall: But did the warrant ever say he's home?

Mr. Zimroth: No, but the point is shouldn't we --

Justice Thurgood Marshall: Well, what would stop him from getting a warrant?

Mr. Zimroth: It wouldn't stop him from getting a warrant, but isn't it better --

Justice Thurgood Marshall: But what?

Will it inconvenience him to get it?

Mr. Zimroth: Yes, it would.

The way it would inconvenience them is that instead of doing further investigation, they would have to divert their resources and go get a warrant.

Justice Thurgood Marshall: And yet --

Mr. Zimroth: Getting a warrant is not --

Justice Thurgood Marshall: -- how long does it take to get a warrant in New York City, as if I don't know.

Mr. Zimroth: Well, the federal authorities in the Campbell case estimated about six hours to get a warrant.

Justice Thurgood Marshall: In New York City?

Mr. Zimroth: Yes, in New York City, about six hours to get a warrant.

Now it's not only a question --

Justice Thurgood Marshall: Where is that?

Mr. Zimroth: In the Southern District of New York which includes Manhattan where this crime occurred.

Justice Thurgood Marshall: Yes, I know where that is but where is this figure that takes six hours?

Mr. Zimroth: In United States against Campbell, a Second Circuit case where the District Court and the Court of Appeals accepted the testimony of, I think it was an FBI agent.

Justice Thurgood Marshall: Well, aren't there magistrates' courts right in the police area?

Mr. Zimroth: No, no sir there are not.

Justice Thurgood Marshall: Never?

Mr. Zimroth: I don't know about never but there were not in 1970 and they were --

Justice Thurgood Marshall: Including Washington Heights?

Mr. Zimroth: As far as I'm aware, there are not.

There weren't then and there aren't now.

It's sort of interesting.

The assumption is that getting a warrant is a very easy affair.

It's not an easy affair.

You have to worry about first of all you call the district attorney and you review the case with him.

The Courts in New York as in many other jurisdictions, you can't get a warrant until you actually initiate a criminal proceeding.

So you review the case with the assistant district attorney.

You have to worry about typists.

You have to worry about transportation.

You have to worry about court stenographers.

Six hours is a long time, and the other point is --

Justice Potter Stewart: Would you say that was the evidence in some other case --

Mr. Zimroth: Yes, sir.

Justice Potter Stewart: -- under the federal system?

This is your case and the state system.

Mr. Zimroth: Well, there's no evidence here because there was no warrant requirement here.

Justice Potter Stewart: Yes.

Mr. Zimroth: I would suggest it would take long to hear than it would in the federal system.

Mr. Zimroth: No, I would say though that if you compare the federal system and the state system, it raises another problem and that is the problem of resources.

We're talking about in this case supposing warrant requirement not on the FBI or the DEA or the Assistant United States Attorney, but upon approximately more than 20,000 police departments throughout the United States.

Justice William H. Rehnquist: Well it isn't just resources Mr. Zimroth is it?

In the County of -- where I -- the state where I came from, there's a county, Coconino which has 20,000 sq/m area.

Massachusetts has an area of 9,000 sq/m, just a transportation problem in that sized county is going to be very substantial if the only magistrates as they are located in the county seat.

Mr. Zimroth: Absolutely Your Honor, and the reason I mentioned the number of police departments is not only because it's a question of resources, but it's a question of different problems in different areas.

We're dealing with 50 states in all these different police departments, some rural counties, some urban counties with some have more resources some have fewer resources.

Some police departments have one member, and some investigations may have only one person on it.

If that --

Justice Thurgood Marshall: And some might not even have a judge.

Why'd you go to the whole hope while you're at it?

Mr. Zimroth: Excuse me?

Justice Thurgood Marshall: Some counties might not even have a judge that could issue a warrant.

Mr. Zimroth: If -- if that's true -- I'm not aware of that being here --

Justice Thurgood Marshall: West Virginia is one state.

Mr. Zimroth: -- but if it's true that is a very -- it is a very serious problem.

Chief Justice Warren E. Burger: -- there are numerous counties in the United States that have no judge, are there not?

Mr. Zimroth: Well, then it's a very serious --

Chief Justice Warren E. Burger: If there any.

Justice Thurgood Marshall: Oh, you have a --

Mr. Zimroth: The problem in that respect.

And the important thing is that we're standing here after the event.

Justice Thurgood Marshall: We're standing -- what I'm talking about is a place that has more than one judge who's available and you don't have to travel 86,000 miles.

Mr. Zimroth: That's true, but it still takes a substantial period of time, and the more important factor than that Your Honor, is that it seem to be unfair to judge a warrant requirement after everything has solidified that's why the question about the indictments is not a fair question, because when an indictment issue all of the evidence has been gathered and it is presented to a body.

We're talking about imposing a warrant requirement in the on going investigative stages.

Justice Potter Stewart: Well, all those things are true about a search warrant aren't they?

Mr. Zimroth: They are true about the search warrant there are two -- there are several very important differences.

The first is the difference of numbers.

In New York County last year, there were approximately 500 search warrants issued in New York County.

There were 30,000 felony arrests in New York County.

Justice Potter Stewart: All of them or a majority of them in people's homes?

Mr. Zimroth: No, Your Honor.

but the important point is that the police will not know in advance whether they're going to find the defendant in his home or not.

Anytime that the arrest is substantially after the commission of the crime itself, the police -- the home is naturally a logical place to check, so that it seems to me that under warrant requirement they will have to get that.

Mr. Hellerstein cites a study which we also cite in our brief which indicates that about half of the felony arrests are made more than two or three hours after the commission of the crime.

So we're talking about potentially a universe of 15,000 cases, not three or 400 cases.

Justice John Paul Stevens: Mr. Zimroth, can I ask you what your view of the laws with regard to this kind of situation?

Say the police have -- as it now a probable cause to arrest a man.

They go to his home and ask if he's home.

The person who answers the door says no, and the police don't believe him.

Can they bust in and arrest him?

Mr. Zimroth: Under the present law, yes they can.

Justice John Paul Stevens: There's no -- they have no requirement of probable cause to believe that he's in the home?

Mr. Zimroth: Oh, I'm sorry, if --

Justice John Paul Stevens: They just don't know, but --

Mr. Zimroth: Oh, no --

Justice John Paul Stevens: -- the first thing they do they want to pick up this man at such and such --

Mr. Zimroth: No, they cannot.

Justice John Paul Stevens: Well then, in any situation would the warrant requirement help or hurt?

If they had the warrant I suppose they could go right in.

Mr. Zimroth: Well, the warrant would be, in my judgment, invalid -- I mean the warrant would be valid but the arrest would still be illegal because it seems to me that regardless of the warrant requirement the police need probable cause to believe that the person is in his home before they can, or in a given location, before they can bust in.

And the warrant --

Justice Thurgood Marshall: Do the arrest warrants in New York limited to a place?

Mr. Zimroth: No, they're not.

They don't --

Justice Thurgood Marshall: They're limited to a person.

Mr. Zimroth: That's right but it --

Justice Thurgood Marshall: And you can pick them up any place.

Mr. Zimroth: If you pick him up in his -- in a dwelling you need probable cause to believe he's in there, that's by statute in New York.

And I also believe it is and should be a matter of constitutional law.

That is the mere existence of the arrest warrant without probable cause does not justify going in to a residence.

Justice John Paul Stevens: But what you're concerned about then is not the probable cause to arrest showing but the probable cause to believe he's inside the premises, which is not at issue in this case.

Mr. Zimroth: No, I'm concerned about imposing the requirement in advance of an arrest warrant that is having the -- the police have to in all these thousands of cases go to a magistrate to have them review the probable cause to get an arrest warrant in order for them to go into a home.

Mr. Hellerstein --

Justice John Paul Stevens: Well, let me presume my example now under -- that I gave you before, and how would the law differ depending on how we decide this case.

If they say, “Yes he is here”, and then they say, “Well, we would like to seem him and place him under arrest”, and now if they say, “Well, you -- then he kicks out the backdoor, I presume you could chase him because it's an exigent circumstance.”

You do the same thing whether you have a warrant or not, wouldn't you?

How does it -- whether you got a warrant affect anything?

In this situation, you go to the door you say, “I want to see so and so because I want to place him under arrest.”

Mr. Zimroth: In that case, it depends -- what Mr. Hellerstein would say is that --

Justice John Paul Stevens: Well I'm asking you, so what would you say?

If there were an arrest warrant ruled and the police had had some opportunity in advance to get an arrest warrant.

Justice John Paul Stevens: Right.

Mr. Zimroth: I think Mr. Hellerstein would say that the fact that exigent circumstances arose at that time would not be sufficient that they could've foreseen this possibility and they should've gotten an arrest warrant.

Justice John Paul Stevens: But that's a question that would be answered by deciding what are exigent circumstances?

Mr. Zimroth: And that is what --

Justice John Paul Stevens: We might agree with them or disagree with them on that.

Mr. Zimroth: And that is the difficult point here Your Honor is that the police have to know in advance what a court two, three, in this case nine years --

Justice John Paul Stevens: Well, supposing we agreed with you that that would be an exigent circumstance if they knock on the door, they say, “We want to arrest him.

If he flees at that moment now they could pursue him.

If that's an exigent circumstance and then you don't have anything to worry about, I guess.

Mr. Zimroth: Yes, you have something to worry about in that -- if the Court imposes -- in that particular case, we would win --

Justice John Paul Stevens: Yes.

Mr. Zimroth: -- I agree.

Justice John Paul Stevens: You'd win.

Mr. Zimroth: In that particular case we would win, but the arrest warrant require --

Justice John Paul Stevens: Yes, so when if you knock on the door and he says, “Yes, he's here”, and he comes out and you arrest him.

Mr. Zimroth: That's true.

Justice John Paul Stevens: Alright.

So if he either -- if he'd runs or if he comes out, you win either way, now when do you lose?

Mr. Zimroth: We lose because if there's an arrest warrant requirement the police in the course of their investigation will not know whether -- they would not know what's going to happen at the door.

Justice John Paul Stevens: Right.

Mr. Zimroth: Those are only two possibilities of things that might happen at the door.

Another thing that might happen at the door is that they might find -- get information that the person whom they're looking for is not in fact guilty.

If they had previously had to get an arrest warrant, presumably they would end up having to arrest him.

In other words, what I'm saying is that in advance --

Justice John Paul Stevens: You say they must arrest him even if they know even if -- they would believe he's not guilty?

Mr. Zimroth: No, if -- well, it depends on how strong the proof is.

Justice John Paul Stevens: I don't think that's very --

Mr. Zimroth: But an arrest warrant is a command.

Justice John Paul Stevens: Well, I understand that, so is a search warrant.

But you -- don't you mean to say every time you get a search warrant you must search even though you find out that there isn't -- you're wrong?

Mr. Zimroth: No, but the realities in the situation are that the police and -- I overstated by saying that they know he's not guilty.

They may have some doubts in their mind instead of allowing them to do further investigation.

The arrest warrant requirement will pressure them, will be an additional pressure for them to make the arrest.

The point is that any exigent circumstances exception is bound to be quite unclear.

If you look what's happening in the various states that's exactly what's happening.

In some states like in California, there's an exigent circumstances exception that's applied so strictly that if the police wait literally ten minutes before they go in and make the arrest, then the Court say they should've gotten a warrant.

That's the People against Ellers case which we cite in our brief.

In other jurisdictions, these exigent circumstances exception really distorts what we ordinarily think of it, the exception out of all proportion and that also is a very unhealthy situation.

It's an unhealthy situation because it doesn't give any guidance to the police.

And it's an unhealthy situation because eventually those cases may influence the exigent circumstance exception in the search area which would be very unfortunate.

I think that the basic point that I want to make here is that you can always think of situations in cases where there are -- where you could say, “Well, the police should have time to get a warrant or they didn't have time to get a warrant.”

But all of those are going to be situations in which we are sitting after the event judging what is already transpired and not situations where the police have to engage on ongoing investigation.

Justice John Paul Stevens: Well, if that's true of any arrest situation, you judge after the event whether there was probable cause.

Mr. Zimroth: And that's what I think should --

Justice John Paul Stevens: And -- and in fact if you get the warrant first you'd have a pretty good idea whether or not you had probable cause.

It seems to me there's more of an after the fact judgment when you don't have a warrant.

Mr. Zimroth: But you don't require the police to -- in a sense, in the midst of their investigation review the evidence before they make the arrest.

Justice John Paul Stevens: That's only if they want to make the arrest in a home.

Mr. Zimroth: But they're not going to know in advance whether they're going to be in the home, whether the defendant is going to be in the home.

So that the requirement is going to have more effect than simply arrest that are made in the home.

And I think that its -- if these kinds of problems which are very difficult to get your hands on because the investigations are by their nature of an infinite variety.

It's this very reason I think that until Coolidge there has been a uniform judgment not to impose an arrest warrant requirement on the police.

And the people who came to that conclusion were not people who were insensitive to the concerns of privacy in the home.

They were the very same people who created the protections which later became the protections embodied in the Fourth Amendment.

I'd -- I have -- I see I only have a few more minutes and I did want to -- the mention of Coolidge brings me really to the second point in the case.

And that is until Coolidge was decided there was very little if anything which could've given the police in the Payton case any reason for going to get a warrant.

There was a state statute at the time which authorized them to enter without a warrant.

What -- even if what conceivable purpose of the exclusionary rule would be served if now nine years after that event this Court excludes the evidence that they found upon entry.

They were following the law as they understood it, and the way they understood it is exactly the way almost every single -- everybody else --

Justice John Paul Stevens: Well, they surely was following the law as they understood it when they searched the entire premises, were they?

Mr. Zimroth: And they'd pay the price for that Your Honor.

Justice John Paul Stevens: Yes, but I mean you can't say they were all following the law as they understood it --

Mr. Zimroth: But we're not judging --

Justice Thurgood Marshall: You say pay, how did they pay the price?

Did you put them in jail?

Did you give the people damages?

Mr. Zimroth: I say we paid the price.

I should've said we paid the price.

Justice Thurgood Marshall: Oh!

Oh, excuse me.

Mr. Zimroth: And it was a very substantial price, I should say, that that is at the -- what was suppressed on the prosecutor's concession before the hearing below were photographs of the defendant in the ski mask when -- and that was the evidence at the trial that he went in with a ski mask.

And I should say Mr. Justice Stevens that I'm not condoning the police conduct for searching, and in fact the -- my office conceded the illegality of that search.

Justice Thurgood Marshall: But did you bring any action against the police who did it?

Mr. Zimroth: No, sir.

Justice Thurgood Marshall: You could have.

There was nothing to stop you, was there, from bringing an action against the police who broke down the door and the man wasn't there, and then --

Mr. Zimroth: My point was that in terms of the breaking down of the door, there was absolutely nothing illegal about that at the time.

It was the generally accepted practice in most of the states.

It had been based on a very long history.

These police officers, in respect to the entry, were following what they thought was the law and which if they had called up a district attorney or their supervisor, that person would've told them it's the law too.

And in fact if they had gone and got or tried to get a warrant, in all likelihood the judge would've said, “What are you doing here?

You don't need a warrant.

The statute doesn't require a warrant.

This is the accepted practice in most of the states.

There's no substantial constitutional issue that is raised.”

What purpose of the exclusionary rule would be served?

I think myself that the exclusion -- that the exclusionary rule would be demeaned in a sense if this evidence was suppressed because you are in effect telling the police that it doesn't matter that they make an effort to follow the law of the state legislature as they understand it and as it is understood at that time.

If there are no questions then I am finished.

Justice Thurgood Marshall: Very well.

Mr. Hellerstein, do you have anything further?

Rebuttal of William E. Hellerstein

Mr. Hellerstein: Just a few things if it please the Court.

Mr. Zimroth is simply wrong, I believe, when he tells you clear out that there is a probable cause requirement for believing that a person who is sought to be arrested in the home must be in that home.

There is no such probable cause requirement that he is at that moment in the home.

Our statute simply requires a reason of belief that he is at home.

And if you know that the man works at night and you go to his home at four in the morning with a warrant or without a warrant, you know he's not going to be home and that is I think what we're talking about.

Justice Potter Stewart: Mr. Hellerstein, it apparently is the fact concededly that in some situations at least, New York does habitually provide for arrest warrants, i.e. grand jury warrants and bench warrants if nothing else.

Mr. Hellerstein: Yes.

Justice Potter Stewart: Let's assume a law enforcement officer is armed with a grand jury warrant that somebody's been indicted in absentia.

First of all, does the warrant say he can enter his home only if he has probable cause to believe he's at home?

Mr. Hellerstein: He has to in the supporting affidavit.

Justice Potter Stewart: Say what?

Mr. Hellerstein: That -- oh no, he doesn't have to say he has probable cause to believe he's in the home.

Justice Potter Stewart: That's why I asked my question.

Mr. Hellerstein: No.

No, no.

Justice Potter Stewart: What's the warrant say.

There's no need for a supporting affidavit is there if there's an indictment?

If there's an indictment that takes the place of an affidavit.

Mr. Hellerstein: Then the warrant simply states the address of the defendant.

Justice Potter Stewart: That is his home address?

Mr. Hellerstein: Yes.

Justice Potter Stewart: Usually?

Mr. Hellerstein: Right.

And that can be arrest for any kind.

Justice Potter Stewart: Yes.

Mr. Hellerstein: Warrant for any kind of an arrest, whether it's within the home or on the street.

Justice Potter Stewart: Yes, but does it -- are there any additional provisions if he's at home?

Mr. Hellerstein: No.

Justice Potter Stewart: Any additional requirements if he's at home?

Does they have to -- somebody have to show probable cause to -- for the officer to have thought that he -- that the prospective arrestee was in fact at home?

Mr. Hellerstein: He must have a reason to believe.

He does not have to show that he has probable cause to believe he's at home at that moment.

And if you know the man's address, it is reasonable to infer that he will be home, unless you have facts to the contrary as I tried to indicate.

I think that's how the courts have dealt with that.

There is a Ninth Circuit case, I think the Philips case was decided by this attorney which I think is a rare case.

I think the general case, Doorman, some Arizona cases that have dealt with the issue say you do not have to have probable cause to believe that he's in his home at that moment.

I think one of the main concerns in the area of entering premises is when you're dealing with third person premises.

Namely, that you have to have probable cause to believe the defendant is in somebody else's home or is not his property.

Justice William H. Rehnquist: Mr. Hellerstein, I think your colleague was asked a question and I want to make sure I understand the correct situation, is it your contention that the warrant that should've been had here but was not should've been a search warrant or an arrest warrant?

Mr. Hellerstein: An arrest warrant, Mr. Justice.

Justice William H. Rehnquist: An arrest warrant.

Mr. Hellerstein: Yes.

Justice Byron R. White: And should they expressly have authorized the arrest in the home?

Mr. Hellerstein: I think it need not have.

It simply should've been a warrant for his arrest --

Justice Byron R. White: For arrest --

Mr. Hellerstein: -- as a predicate for an arrest within the home, in other words supporting papers I think.

Justice Byron R. White: And with that warrant which needn't say anything about the home and I assume that at the time he gets the warrant, or even later, he need not have probable cause to believe that he's at home?

Mr. Hellerstein: That is my submission.

Justice Byron R. White: But you think that when he -- if he purports to enter the house with or without force, without consent, does he need reasonable cause to believe or reasonable suspicion to believe that he's in the house?

Mr. Hellerstein: Reason to belief --to believe -- a reason to believe to conclude the defendant is at home when he is obtaining a warrant.

Justice Byron R. White: Now that -- for that part of it --

Mr. Hellerstein: Nor to obtain the warrant Mr. Justice.

Justice Byron R. White: For that part of it, under the current law in most jurisdictions including New York I take it where there isn't a need for a warrant.

Suppose there's probable cause for arrest and the officer goes to the house.

He wants to arrest him in the house.

Is the law of New York that he must then have reasonable suspicion to believe that he's in the house?

Mr. Hellerstein: With respect to a warrantless arrest.

Justice Potter Stewart: With any warrant.

Justice Byron R. White: Yes, warrantless arrest.

Mr. Hellerstein: With respect --

Justice Byron R. White: What's the current law in New York?

Mr. Hellerstein: It says that he must have reason to believe -- reason of belief that he's at home.

Justice Byron R. White: So that particular -- on that particular aspect it won't make any value in entering the house.

It won't -- the house, it won't make any difference whether it's with or without a warrant.

That either case, he must have reasonable suspicion to believe he's in the house.

Mr. Hellerstein: Yes, Section 140 -- 15, arrest without a warrant may enter premises in which he reasonably believes such person to be present, that's without a warrant.

Mr. Hellerstein: I do not believe that is the same thing as probable cause to believe the --

Justice Byron R. White: Well whatever it is the standard now is for a warrantless arrest in the house, in terms of whether you think he's there or not, is the same standard as you would accept even with a warrant requirement?

Mr. Hellerstein: Yes, Mr. Justice and that is the statute 1280 which follows that that has the same language.

Justice Byron R. White: So that you are -- you're warrant requirement then that you are asking be imposed here is more for verifying probable cause to arrest?

Mr. Hellerstein: Absolutely, that's crucial that a magistrate not the officer should make --

Justice Byron R. White: Not to protect the home?

Mr. Hellerstein: To protect?

Justice Byron R. White: Not to protect the home?

Mr. Hellerstein: Oh, yes!

In fact the decision that there was probable cause to believe the man has committed a crime is decision that is made upon a showing to a magistrate.

Justice Byron R. White: Oh, I know, but the -- whether you get the warrant or not isn't going to change at all the rules to whether you can enter his house.

Mr. Hellerstein: Oh, yes it will.

Justice Byron R. White: But, well -- how will it --

Mr. Hellerstein: It will require a warrant.

Justice Byron R. White: Well, I know but the only thing the warrant will do that you want is to say there's probable cause to believe that this man committed a crime.

Mr. Hellerstein: And that a magistrate makes that determination if (Voice Overlap) --

Justice Potter Stewart: Probable cause to arrest?

Mr. Hellerstein: Yes, probable cause to arrest him.

Justice Byron R. White: But he -- but you don't want any -- you don't want the warrant -- you don't want to involve the warrant in anything about the house.

Chief Justice Warren E. Burger: Within the jurisdiction of the warrant.

Mr. Hellerstein: Yes.

And a concern that the police won't know where the defendant is, I'm saying if they face --

Justice Thurgood Marshall: But in most --

Mr. Hellerstein: -- they're going to go to his home --

Justice Thurgood Marshall: In most places, the last place you'll find him is at home.

Mr. Hellerstein: Well, the first --

Justice Thurgood Marshall: If they -- if he knows you got his address, that's the last place he's going to be.

Mr. Hellerstein: Not so in the Riddick case, Mr. Justice Marshall, but let me -- there're two other things that I wanted to spell.

The notion of this burden of time, at least in urban areas, it is not correct that it takes six hours to get a warrant in New York County.

We've cited in our reply brief, one case where it was two hours for a search warrant.

Of course there's nothing in the record on the time, but I simply submit that six hours is not an accurate statement.

Mr. Justice Rehnquist, with respect to rural areas, I also submit that perhaps the time in obtaining a warrant might be relevant to an assessment as to whether the warrant was required.

But I think that would have to depend upon the situation in that rural county.

I also don't know that this Court would hold a magistrate, pure magistrate need issue the warrant under Shadow and the City of Tampa, it might find something less, I don't know.

Now, third fact that Mr. Zimroth tells you was that once a warrant would be obtained, the police officer would have no alternative even though he now knew the fellow was innocent but to execute that warrant.

That simply is not the case.

There is no reason he cannot countermand that warrant under the federal rules of current procedure Rule 4 (b) (4) or (5).

A magistrate is authorized to cancel any unexecuted warrants upon request --

Chief Justice Warren E. Burger: How would that affect the City of New York problem?

Mr. Hellerstein: Well, I think the process would be the same.

If an officer says that “Gee, the fellow I got the warrant for, I now know he's innocent, we don't have to arrest him.”

And called the district attorney and say, “We've made our mistake.

Have them -- have the warrant vitiated.”

There's no -- I just think that that's not so.

Chief Justice Warren E. Burger: Do you think there is any risk, Mr. Hellerstein, any risk that if 30,000 warrants must be obtained, if that was the figure in some relatively small metropolitan area, small geographically that the value of the warrant will be depreciated by the fact that what the police will have to do, law enforcement will have to do would be to setting motion to some of the new electronic equipment, word processing machines where you will get your warrant from the prosecutor to the magistrate the issuing officer to the police officer all transmitted by wires?

Mr. Hellerstein: Mr. Chief Justice, first of all, I know New York has a lot of crime.

I don't know that even 30,000 warrants in the context of this case would be an accurate figure.

Chief Justice Warren E. Burger: Well, I should think it sounded low to me for a city like New York.

Mr. Hellerstein: I do respect I would think it might be high insofar as we're talking about arrest within the home that are made on --

Chief Justice Warren E. Burger: No, I'm not talking about arrests, home or not home --

Mr. Hellerstein: We are --

Chief Justice Warren E. Burger: -- is not the issue.

Mr. Hellerstein: We're only asking that the warrant requirement be imposed for arrest within the home --

Chief Justice Warren E. Burger: Because the issue in my hypothetical question is relating to arrests.

And your -- for the purposes of your case, you're narrowing it not just to the home but to an arrest in somebody's home, a dwelling, are you not?

Mr. Hellerstein: Addressed in a dwelling in non-exigent circumstances.

Chief Justice Warren E. Burger: No.

Justice Potter Stewart: Mr. Hellerstein, I'm both confused and disturbed now in view of your answers to some of my colleagues questions.

You're contending here that the constitution requires an arrest warrant.

Mr. Hellerstein: Yes, Mr. Justice.

Justice Potter Stewart: And then you, as I understood it to say that if a law enforcement officer is armed with an arrest warrant such as you say in this case the constitution requires.

Then he is authorized to arrest the person wherever he's found, you said that didn't you?

Mr. Hellerstein: He can do that without a warrant, yes.

Justice Potter Stewart: And does that give greater or lesser protection to the interest of homeowners if he's armed with a warrant to arrest an individual, can he then break into every house in the neighborhood --

Mr. Hellerstein: Oh, no!

Justice Potter Stewart: -- looking for that individual because it's a valid arrest wherever that --

Mr. Hellerstein: Oh, no --

Justice Potter Stewart: -- person is in fact found whatever the suspicion maybe as to whether he's going to be there?

Mr. Hellerstein: No, absolutely not.

I'm saying that the arrest -- not at all, I'm suggesting that -- that in fact that's Lang versus Gailstiene I believe in the Fourth Circuit.

That I'm saying with a warrant to arrest, you must have probable cause to believe that he has committed a crime and a reasonable basis to believe he's in the premises where you're going and --

Justice Byron R. White: Yes, but you don't need to -- have it that determined by a warrant that he's in some premises.

Mr. Hellerstein: No, that's by statute.

Justice Potter Stewart: Well no, no, no but where -- not here to bother about New York statutes or the statutes of any other states.

We don't have any business with those except as to --

Mr. Hellerstein: I was going to an assumption this be would be inserted into New York statute of law.

Justice Potter Stewart: -- if they may involve a federal question, where -- to here as to what the -- does the federal constitution require?

Mr. Hellerstein: It requires an -- a determination of probable cause as --

Justice Potter Stewart: To arrest the person.

Mr. Hellerstein: To arrest the person.

Justice Potter Stewart: Wherever found.

Mr. Hellerstein: Wherever found, but only if he's in his home is a warrant required.

Chief Justice Warren E. Burger: Do you --

Mr. Hellerstein: You do not require a warrant for the public way.

If you know you're going --

Justice Potter Stewart: But obviously when they get the -- they won't know at the time whether the man is in his home or not in his home or maybe he's out in the public street or some other public place --

Mr. Hellerstein: Right.

Justice Potter Stewart: -- maybe it's in somebody else's home.

So what they do is get a warrant to arrest him, right, under your submission?

Does the constitution requires an arrest warrant?

Mr. Hellerstein: If they must inform the magistrate that it is to be within the home.

Justice Potter Stewart: Well that's what I didn't get.

Mr. Hellerstein: Yes, that why --

Justice William H. Rehnquist: How can they know --

Mr. Hellerstein: (Voice Overlap) --

Justice William H. Rehnquist: -- six hours in advance that he will or will not be within his home?

Justice Potter Stewart: Exactly.

Mr. Hellerstein: They can anticipate.

Justice Byron R. White: You just told me awhile ago that it need not say in the warrant that he'd -- they can arrest in the home.

Mr. Hellerstein: It must say in the supporting papers that we are seeking a warrant --

Justice Byron R. White: I thought you said just awhile ago it did not require any showing in connection with getting in a warrant that there was probable cause to believe that he was in the house?

Chief Justice Warren E. Burger: When you look at the statistics and you find that at any given time in any big city there are thousands of arrest warrants outstanding and when a policeman has any doubt they have a system of checking in to see if there's an outstanding warrant on a person they've stopped for a traffic accident.

Or the policemen may have six outstanding warrants in his pocket for his particular precinct or district.

They aren't issued with the view that necessarily they're going to be executed within 48 hours.

They may have a time limit by law, but there are a great many unexecuted warrants floating around in police departments in this country.

Mr. Hellerstein: I think those --

Chief Justice Warren E. Burger: State warrants, I'm talking about.

Mr. Hellerstein: -- those are essentially bench warrants which are issued for suspects.

In New York City the high statistics is not the unexecuted arrest warrant, it's the unexecuted bench warrant where there's been an --

Justice Potter Stewart: Which is an arrest warrant?

Chief Justice Warren E. Burger: That's an arrest warrant.

Mr. Hellerstein: After an accusatory instrument.

Justice Potter Stewart: Yes, it is an arrest warrant, isn't it?

Mr. Hellerstein: But with respect to -- I think if the officer intends to make an arrest within the home, he must come before the magistrate --

Justice Potter Stewart: And so what?

Mr. Hellerstein: -- so stating and that he must have established on the papers that he has probable cause to believe that there is -- that the defendant has committed a crime and that he has reason to belief -- to believe that he is in his home.

Justice Byron R. White: So in a lot of circumstances then he'll have to come back if he wants to -- because you -- I am sure there'll be a lot of arrest warrants issued for -- to arrest the man before they know where he is or what -- where he lives or anything else if -- and if they had -- and if he's got that kind of a warrant in his pocket that doesn't authorize an arrest in a home, and you say the warrant never needs to do that.

But if he hasn't -- if there were some -- if he doesn't know that there are underlying papers that establish some reason to believe that he's in some house like his, he's got to go back to the magistrate and say, “I now believe this man's at home so I want to -- and I just want to tell that.

You don't need to change the warrant I just want to tell you that.”

Mr. Hellerstein: No, I think he has to have -- there has to be a connection between going to the home.

Justice Byron R. White: Well, does the magistrate have to agree and decide that there's probable cause to believe that he's in the house?

Justice Potter Stewart: Then at that time?

Mr. Hellerstein: No.

Probable cause?

In the sense of --

Justice Byron R. White: Reasonable suspicion --

Mr. Hellerstein: Reason for believe, yes.

Justice Byron R. White: Or then does he then have to make a decision and evidence that's somewhere?

Mr. Hellerstein: Under our present system, yes.

Justice Byron R. White: Well, I know but what about the federal constitution?

Does it require him to make some conclusion or not?

Mr. Hellerstein: I think yes.

Justice Byron R. White: Where?

Mr. Hellerstein: Well, I don't know in the constitution, but I think that --

Justice Byron R. White: Well, that's what you're arguing --

Mr. Hellerstein: He has to determine on the application before him, papers --

Justice Byron R. White: Well, where does he determine it, does he put it in the warrant?

Mr. Hellerstein: It would depend what the warrant would say.

Justice Byron R. White: Well, all I want to know is what you -- what your submission is the federal constitution requires the magistrate to find with respect to whether or not the man is in the house.

Mr. Hellerstein: I -- my submission is that it state that in time the warrant was obtained, there were two things, probable cause for the crime and reason for belief that he is at home.

Justice Potter Stewart: Well if -- is it -- would be sufficient if he just knows where his home is?

Mr. Hellerstein: Yes.

Justice Potter Stewart: The address of his home?

Mr. Hellerstein: Yes.

Justice Potter Stewart: There's a John Smith and he lives at 2020 Main Street.

Mr. Hellerstein: Yes, like that.

Justice Potter Stewart: And is that enough?

Mr. Hellerstein: Yes.

Justice Potter Stewart: And then you say you can arrest him in public without that warrant.

Mr. Hellerstein: Yes, they can do that under Watson.

Justice Potter Stewart: And he can arrest him in his home only with that warrant.

Mr. Hellerstein: Right.

Justice Byron R. White: But you say that the federal constitution requires, like the state law, that at the time he gets there --

Mr. Hellerstein: No.

Justice Byron R. White: -- there must be federal -- reasonable cause to believe that he's in the house.

Mr. Hellerstein: I'm sorry if I've confused you Mr. Justice, I thought that was what my adversary was saying.

Mr. Hellerstein: If this Court had held that the warrant was required so far as the probable cause to believe commission of the crime, I think it would be sufficient, yes.

Justice Thurgood Marshall: What --

Mr. Hellerstein: And then the officers locating the premises could go in without warrant.

Justice Thurgood Marshall: Help me Mr. Hellerstein, I have never seen a warrant that said what you said, that this is a warrant for the arrest of John Doe, and if you find him in his house, you're going to arrest him there.

Mr. Hellerstein: There are --

Justice Thurgood Marshall: I have never seen one like that.

Mr. Hellerstein: There are John Doe warrants Mr. Justice.

Justice Thurgood Marshall: This isn't John -- I mean this is James Smith.

Justice Potter Stewart: Right.

Chief Justice Warren E. Burger: A real one.

Justice Thurgood Marshall: This is, what's his name, Theodore Payton, and if you find him at home, you can arrest him at home.

I've never seen a warrant like that.

Mr. Hellerstein: Neither have I.

Justice Thurgood Marshall: I don't know what --

Mr. Hellerstein: (Voice Overlap) --

Justice Thurgood Marshall: I thought you said the warrant had to say that they can arrest him at home?

Mr. Hellerstein: No, I think -- what I meant to say is that the warrant had to be obtained in order for there to be an arrest within the home.

Justice Thurgood Marshall: Well, it doesn't have to say so in the warrant.

Mr. Hellerstein: No.

Justice Potter Stewart: He can be arrested in a public place without a warrant.

He can be arrested in his or somebody else's home only with a warrant --

Mr. Hellerstein: That is my --

Justice Potter Stewart: -- an arrest warrant.

Justice John Paul Stevens: Let me be -- probably repeating but it seems to me there'd been some misunderstanding.

In this very case, talking about Mr. Payton, as I understand the sequence of events they'd learned his identity at one time and his name at another time and his address at another time.

If at the time before they knew his address, they knew his identity and a probable cause to believe he was responsible for the offense and they got an arrest warrant for that person without naming an address.

They had then taken that warrant, later learned his address and broken down the door as they did in this case.

Would you concede they acted within the Constitution?

Mr. Hellerstein: If they had the arrest warrant?

Justice John Paul Stevens: Yes, but with no address on it.

Mr. Hellerstein: I would be reluctant to concede that Mr. Justice Stevens, because I've had no experience with that context.

I think that I might go so far as to say that mainly because the warrant had been obtained by a magistrate who had made the determination that there was new probable cause.

And once the determination was made by a magistrate --

Justice John Paul Stevens: Would you think there may be a constitutional difference between a warrant that includes the man's address and one that does not?

That's the delay.

Justice Thurgood Marshall: Where whom?

Mr. Hellerstein: I don't think there was a difference.

Justice John Paul Stevens: Well, otherwise you should concede that because you have conceded, if I understand you correctly, that if the warrant includes his address that's all that's necessary.

They don't know where he is.

Mr. Hellerstein: Yes.

Justice John Paul Stevens: They get a warrant to get to his -- to arrest this man.

They know where he lives.

They go out the first place they look is in his home and nobody answers the door so they break it down.

You say that's all right, but it's not all right if they don't know his address before they get the warrant.

Mr. Hellerstein: That's right.

Justice John Paul Stevens: Is that your position?

Mr. Hellerstein: No, I think that in terms of what the constitution required a warrant --

Justice John Paul Stevens: That's what we're talking about here.

Mr. Hellerstein: -- it should have the man's address in it.

Justice John Paul Stevens: Well, you're saying then that the -- there's a constitutional difference depending on whether they get his address in the warrant or not?

Mr. Hellerstein: I'm not certain of that though.

I'm not certain that is -- I think the key thing is that the warrant --

Justice John Paul Stevens: It seems to me that if you take that position you are really agreeing with Mr. Justice White that you want some kind of constitutional protection on knowing whether he's in the house or not, and that would be more like a search warrant.

And then you're going to say the time you go in to get the warrant, you got to be able to predict whether he'd be in the house at the time they get there or not.

Mr. Hellerstein: Well, that's not what I'm after.

I'm after the determination that a magistrate makes with respect to prior -- to going to the home.

I don't know what the experience would be or in the Constitution --

Justice Byron R. White: Well, if your big worry is having the magistrate's confirmation as to probable cause to -- that this man committed a crime, I would think you would like to urge that just generally that there just should be arrest warrants at anytime whenever you think at anytime you get them.

Mr. Hellerstein: Mr. Justice, I can --

Justice Byron R. White: And not just for the house if there'd be -- if aim of this protection as to -- is not protected -- if it isn't aimed at protecting the privacy of the home but just probable cause to commit with respect to the commission of the crime.

That's general applicability.

Mr. Hellerstein: After the Court's decision in Watson, I can urge that.

What I'm saying --

Justice Byron R. White: Well, you might be back though another day, do you?

Mr. Hellerstein: I think it'd be a while but I believe that Watson says is not required.

What I'm trying simply to say is that a warrant to enter the home is required beyond Watson.

That is -- I'm not seeking a warrant for arrest.

I'm seeking for a warrant for arrest within the home.

Chief Justice Warren E. Burger: Let me see if I understand the net of your argument.

Is it this that whenever there is an arrest, it can be made without a warrant only if they're arrested in a public place?

If they are arrested anywhere else, they must have a warrant?

Mr. Hellerstein: No, Mr. Chief Justice.

I think that states it far too --

Chief Justice Warren E. Burger: Well, the pieces of your argument add up to that for me.

Mr. Hellerstein: No, I'm simply saying that there can be an arrest -- there can be no arrest within the home without a warrant.

Chief Justice Warren E. Burger: How about his office?

Mr. Hellerstein: An office?

Depending on the nature of the office and the extent --

Chief Justice Warren E. Burger: Well, where does the constitution help you there, that's what we're guided by.

Mr. Hellerstein: Just in the continuum of this Court's -- that's not this case.

This Court has another decisions, afforded offices some protection under the Fourth Amendment depending on what the expectations of privacy were, who had access to the office.

I would be willing to concede that an office that was open to the public to do business was not in any way like the home.

Mr. Hellerstein: I think the interior of my office where I might work alone would have the same privacy of the home, but not necessarily where I see clients and do business.

That would be I would draw the line.

Chief Justice Warren E. Burger: Some of the members of the Court would like to have an opportunity to examine those copies of bench warrants or grand jury warrants if your friend has no objection, would you leave them?

Mr. Hellerstein: I'd be most happy to leave them Mr. Chief Justice.

Chief Justice Warren E. Burger: If you'll deposit them with the clerk.

The above-entitled matters came on for oral argument at 1:29 o'clock p.m.

BEFORE:

WARREN E. BURGER, Chief Justice of the United States

WILLIAM J. BRENNAN, JR., Associate Justice

POTTER STEWART, Associate Justice

BYRON R. WHITE, Associate Justice

THURGOOD MARSHALL, Associate Justice

HARRY A. BLACKMUN, Associate Justice

LEWIS F. POWELL, JR., Associate Justice

WILLIAM H. REHNQUIST, Associate Justice

JOHN PAUL STEVENS, Associate Justice

APPEARANCES:

WILLIAM E. HELLERSTEIN, ESQ., The Legal Aid Society, 15 Park Row, New York, New York 10038; on behalf of the Appellants.

PETER L. ZIMROTH, ESQ., Chief Assistant District Attorney, New York County, 155 Leonard Street, New York, New York 10013; on behalf of the Appellee.

PROCEEDINGS

MR. CHIEF JUSTICE BURGER: We will hear argument next in 78-5420 and 78-5421, Theodore Payton v. New York, and Obie Riddick v. New York.

Mr. Hellerstein, I think you may proceed when you are ready.

ORAL ARGUMENT OF WILLIAM E. HELLERSTEIN, ESQ., ON BEHALF OF THE APPELLANTS

MR. HELLERSTEIN: Mr. Chief Justice, and may it please the Court:

These cases are before you on reargument. They are appeals from the New York Court of Appeals which by a vote of four-to-three sustained the constitutionality of New York's arrest statutes which allow, even in the absence of exigent circumstances, a warrantless entry into the home for the purposes of arrest.

Briefly I will state the facts which I think in both cases are manifestations of the operations of the statute, that in real terms demonstrate the importance of the warrant requirement which I think this Court will require or should require.

In the Payton case, you had a situation where on January 12, 1970, there was a homicide in the course of a robbery at an upper East Side gas station in New York City. Two days later, the investigating police obtained information as to who they could believe was the probable cause to have committed the crime. That information led them that date to go to the premises, to have the premises pointed out to them and to do nothing, to spend the rest of the afternoon, the entire evening, until 7:30 the next morning when then a substantially group of detectives went to the premises, an apartment on the fifth floor in a building in the South Bronx -- in Manhattan. I'm sorry, and after trying to force the door open and unable to do so, called for assistance which arrived a half hour later and with the use of crowbars the door was forced open.

Once they police entered the premises and they saw that Mr. Payton not even there, they proceeded to ransack the apartment, seized a number of items and all of which was suppressed by the trial consent on consent of the prosecution except for a .30 caliber cartridge that was found in plain view on top of the stereo set.

The lower courts and the majority of the New York Court of Appeals, finding that the police were lawfully in the premises since they did not need a warrant, could have seized what they saw in plain view.

The Riddick case is another striking in some respects example of the essentiality of a warrant requirement. In Riddick, the crime was committed four years prior to the arrest. The police had a probable cause and could have known and could have gotten Mr. Riddick a long time before they went into his apartment. They waited two months before they decided to arrest him in his apartment without a warrant, even though they knew his address.

They went in -- his three-year-old son answered the door, they entered, Mr. Riddick was sitting in his bed with some underwear on but naked to the waist, and he was arrested.

I think the entries in both of these cases are cardinal examples of why, as I understand where this Court has gone so far with respect to warrants, the warrant requirement should and must be imposed with respect to entry in non-exigent circumstances into private premises.

QUESTION: If the police had had a warrant, that wouldn't have prevented them from arresting the latter petitioner in his underwear, would it?

MR. HELLERSTEIN: No, Mr. Justice White. They didn't arrest him in his underwear. I mean they let him get dressed to leave. I just -- the reason I emphasized his underwear is that we are talking about the home and this is the heart of privacy and in order to enter a home and seize citizens in that context I think, as I understand the warrant requirement, it has always been to insure that a magistrate has determined even before that type of entry is made. The probable cause determination should be made by someone other than a police officer who has to make subjective judgments that are not always correct.

QUESTION: Could you make the same argument if this were a motel? You would make the same argument if this were a motel?

MR. HELLERSTEIN: Oh, yes, I would, depending on the expectation of privacy that the residents of that motel may have.

QUESTION: So that the word "home" doesn't have any particular magic in it?

MR. HELLERSTEIN: I think that the Court has said quite clearly that the Fourth Amendment protects people, not places, but people in the context of where their expectation of privacy is the highest and we would draw no distinction with respect to motels and homes. So it should be actual residence, and I think a motel room can be home to a person who is there, that there would be no distinction.

QUESTION: In each of these cases, the petitioner both Payton and Riddick, were arrested in their own residences, were they not?

MR. HELLERSTEIN: No, Mr. Payton was -- he turned himself in. He was not home.

QUESTION: Oh, that's right. But in any event, the entry was into the residence of each of Payton and Riddick as well.

MR. HELLERSTEIN: Yes, sir. You are correct, Mr. Justice Stewart.

QUESTION: And in each case the residence was what, an apartment in New York City?

MR. HELLERSTEIN: In Payton's it was a multiple dwelling tenement, fifth floor, apartment 5-A. I would say it is a typical New York, Manhattan tenement. In Riddick, it was a two-family private house in Queens.

QUESTION: Half a house.

MR. HELLERSTEIN: The majority below approached the case along the lines that an entry to arrest is less intrusive than an entry to search. That was its first premise. Its second premise was that an arrest in the home is less embarrassing than an arrest in public and therefore this Court's concern in Watson was even less forceful. For reasons I will state, I disagree with both.

Again, the Court of Appeals thought that the common law was very one-sided in terms of trying to ascertain the -- the claim was one-sided -- the common law allowed entries. I submit, I think in our brief extensively we come to quite an opposite conclusion. So we think these assumptions were wrong, they are erroneous.

I think it is noteworthy that since the opinion of the Court of Appeals in this case, a number of the courts, high appellate courts have refused to follow it, I think because it is a bitter pill for a lot of courts to follow, a warrantless entry of this kind. And the Eighth Circuit has just recently, in the Houle case, which is in our supplemental brief, refused to allow warrantless entries and the high courts of Wisconsin and Pennsylvania also refused to follow the Payton case as decided by the majority.

There is some significance I think at least in the sensitivity of a number of courts as to the federal issue.

Our basic line, basic view is that if one thing is clear about this Court's decision is that physical entries of the home is the chief evil against which the Fourth Amendment stands, and that is what this case is about.

The arrest warrant provides protection at the very least against that type of entry without a manner of determination that on the facts known to the officer there is probable cause to believe that a defendant has committed a crime.

I think for us the logical starting point for our argument has to be the plurality opinion in the Coolidge case, where the Court said that no warrant for an entry to arrest was per se unreasonable in line with the Court's decisions, and absent well-defined exigent circumstances there could be no warrantless entry.

Further than the Coolidge case, the Court said in Warden v. Hayden, which has come to be known as a "hot pursuit" type of case, stands by which negative implication that an arrest warrant is required. These two statements of the plurality in Collidge have led most if not all, but a substantial and predominant number of courts to read the language in Coolidge to come to a conclusion quite opposite that which did the majority below.

QUESTION: Which is what? These courts have come to what conclusion?

MR. HELLERSTEIN: Quite opposite the --

QUESTION: Which is what?

MR. HELLERSTEIN: Which is that a warrant is required.

QUESTION: What kind of a warrant?

MR. HELLERSTEIN: That I think, Mr. Justice White, is a little more difficult question than the initial question.

QUESTION: Well, I just ask you what the -- I didn't want to argue -- what are those cases that are --

MR. HELLERSTEIN: Most courts have held that an arrest warrant. The Ninth Circuit, in United States v. Prescott, has said we don't care what you call it as long as it has two things, it requires a determination by the magistrate as to entry of premises as well as probable cause of a crime. But most courts either gloss over what type of warrant or specifically say arrest warrants. The Second Circuit --

QUESTION: Which is just probable cause to believe this particular person committed a crime?

MR. HELLERSTEIN: Yes.

QUESTION: Not that he is in the house.

MR. HELLERSTEIN: Not that he is in the house. That is a determination when it is an arrest warrant, that when the warrant is being executed.

QUESTION: Does any court do you know, require search warrants?

MR. HELLERSTEIN: The Ninth Circuit requires a warrant that requires the magistrate to do both. A number of other --

QUESTION: Which is do both what, the probable cause to --

MR. HELLERSTEIN: It is really a search warrant.

QUESTION: -- to enter the house because there is probable cause to believe the man is there?

MR. HELLERSTEIN: Well --

QUESTION: Is that your position?

MR. HELLERSTEIN: My position is that maximally a search warrant would make the most sense in terms of the --

QUESTION: How about minimally?

MR. HELLERSTEIN: Minimally an arrest warrant plus reasonable cause when a warrant is executed by an officer to believe that the defendant is --

QUESTION: So minimally the Ninth Circuit position.

MR. HELLERSTEIN: No, the Ninth Circuit would go a little bit more, and I was glad to have it, but I would take the position that I think was at least touched upon in this Court's opinion in the Dalia case.

QUESTION: Which one? Which case?

MR. HELLERSTEIN: Dalia v. United States, a surreptitious entry case, where Mr. Justice Powell, writings for the Court, specifically noted that an arrest warrant, first of all, is a useful document. Secondly, a magistrate cannot always focus on every aspect of the privacy intrusion but that the important thing is an arrest warrant in the officer's hand.

Now, as far as I see it in a case such as this, where there is no warrant at all is required as a predicate for entry, at the very least the Fourth Amendment should require and does require an arrest warrant.

QUESTION: Mr. Hollerstein, are there some courts that say that all you need is an arrest warrant or that -- say there is a court that says you need only probable cause to enter the house, you don't need a warrant at all. But do they say -- don't some of those courts say that at the time you enter the house you must have probable cause not only to arrest but to believe the man is in the house?

MR. HELLERSTEIN: I think, yes, I think there is a -- I don't recall if they specifically talk about the second aspect, but I would say that it would be fair to guess that even a court such as I think the Seventh Circuit which does not require a warrant, would say that even though you are going with probable cause on a crime, also have to believe that the fellow is on the premises.

QUESTION: Is that what the New York courts held here?

MR. HELLERSTEIN: The New York -- that issue did not come up in terms of these cases.

QUESTION: Because you can take him -- the light was on and you could hear a radio or something.

MR. HELLERSTEIN: Yes.

QUESTION: So they did have reason to believe there was somebody in there.

MR. HELLERSTEIN: Yes, Mr. Justice.

QUESTION: In each of these cases, you concede that there was probable cause?

MR. HELLERSTEIN: Of the crime.

QUESTION: Yes, and therefore that an arrest warrant could have properly issued?

MR. HELLERSTEIN: Yes, I do. I think the information as to both --

QUESTION: What about the people cause to believe that somebody is -- that the defendant is in the premises?

MR. HELLERSTEIN: I think that the officers, had they gotten a warrant would have, if it was an arrest warrant, would have had probable cause in both cases to execute that warrant.

QUESTION: So that the narrow issue here is whether you need some kind of a warrant.

MR. HELLERSTEIN: That's correct.

QUESTION: Mr. Hellerstein, earlier in your argument you placed great stress on using Coolidge v. New Hampshire, Justice Stewart's opinion as a starting point. I take it Justice Harlan's concurring opinion wasn't necessary to make that majority opinion?

MR. HELLERSTEIN: Yes.

QUESTION: And as I read his opinion, he starts out by saying from the several opinions that have been filed in this case, it is apparent that the law of search and seizure is due for an overhauling and then he goes on and says I would begin this process of reevaluation by overruling Map v. Ohio and Kerr v. California. Now, I take it if one were to follow Justice Harlan's views, which were necessary to make a majority, that you wouldn't have much of a case.

MR. HELLERSTEIN: I guess it would depend upon the composition of the Court at the time, first of all, Mr. Justice Rehnquist. I think that -- and I don't presume to speak for Mr. Justice Harlan -- that considerations that he spoke to in those cases were his views of federalism and the Fourth Amendment, and I know that you for one do share perhaps with respect to Map at least that view, but I think often in Mr. Justice Harlan's opinion he was extremely sensitive as he says in Jones, too, forcible entry into the home to make an arrest, he said a great constitutional question is presented by that issue which is the issue we have here.

The approach which the Court of Appeals below took in the majority opinion by Judge Jones really I think denigrated it or underestimated tremendously the nature of warrantless entry. For the court to be able to say that an arrest is less intrusive than a search entry, this doesn't square factually with arrest entries or the facts of this case.

First of all, when police enter a dwelling, as they did in these cases, they are affecting the privacy of all of the people where there may be more than just the defendant. But the manner of the entry is not designed to safeguard the privacy interest but to minimize it. We have in our brief cited manuals, standard operating manuals of what police are supposed to do when they go into a premises to arrest a felon to protect themselves. They are to fan out and engaged in protective sweeps. That is pretty intrusive and can be very often much more intrusive than a search in which you find the item or items that are specified in the search warrant, to be very unobtrusive. The entire premises are open to scrutiny, items that people hold dear to them are private, have nothing to do with whatever they are being sought for, can be seen by officers. The search incident to an arrest can be very intrusive.

On the other hand, a search can be minimal. There was nothing minimal about the entry in these two cases.

QUESTION: Well, in these two cases, even if the state is correct, that wouldn't lead to a lot of intensive indiscriminate searching. The search incident to the arrest would be limited by the contours delineated in the Chimel case and --

MR. HELLERSTEIN: Yes, Your Honor.

QUESTION: -- and anything else would just be subject to plain view.

MR. HELLERSTEIN: That's correct.

QUESTION: Isn't that right?

MR. HELLERSTEIN: But I think what is important is the point that --

QUESTION: You don't have here, even if the state is correct, a threat of an intensive search throughout the house.

MR. HELLERSTEIN: Well, you have that -- I think that is a point that Chief Judge Cook was trying to make in his dissent. I think there is some value in it. He said if the officers here had an arrest warrant, they would have known on paper that they were going to arrest Payton and they would not have --

QUESTION: And that was their only purpose.

MR. HELLERSTEIN: Right.

QUESTION: Any search would be limited to the limitations of Chimel plus they could have seized anything in plain view.

MR. HELLERSTEIN: That's correct.

QUESTION: If the state is correct, period. Is that right?

MR. HELLERSTEIN: That's correct. But I think it was sort of in a way a psychological point that the Chief Judge was making and that is a warrant itself has a value of limiting, telling the officers or directing that when you have this fellow and you have probable cause to believe he has committed a crime, you go and arrest him, that is all you are supposed to be doing. We are not going to leave it to the suppression at a trial to take care of everything else you ransacked the place for. That I think would be the --

QUESTION: The plain view doctrine would be an exception to all of that.

MR. HELLERSTEIN: Yes.

QUESTION: If while they are standing inside the door of the arrestee, and he says let me get my clothes on, they see a pistol or whatever, they can take, of course, can't they?

MR. HELLERSTEIN: Yes. I am not saying --

QUESTION: It is unlawfully there.

MR. HELLERSTEIN: Yes, unlawfully there. Our position is that in this case they were not lawfully there without a warrant. And as I stated earlier, as I see it, the minimum requirement is for an arrest warrant, is what this Court in the majority in the Dalia case have given meaning to an arrest warrant, then that is the kind of warrant that should be required and is required with respect to arrest entries.

QUESTION: How about arresting somebody in the third person's home?

MR. HELLERSTEIN: There I think, at least in terms of the way scholarly discussion has gone, in some circuits, such as the Third Circuit, there is a greater concern that in that situation particularly, perhaps only a search warrant will do the job because there the magistrate is not even focusing on the person whose premises it is. I don't think this Court has to get into that in this case. These two cases involve arrest entries on premises --

QUESTION: Well, would the magistrate ordinarily focus on whose home other than his own the person might be in?

MR. HELLERSTEIN: Not in an arrest warrant context. He would if he were required to get a search warrant.

QUESTION: Would you be satisfied with an arrest warrant even to support the search, the breaking in the home of John Smith because the officers suspected that the object of the warrant might be there?

MR. HELLERSTEIN: Some courts have so held --

QUESTION: Or Mary Smith?

QUESTION: Some courts have so held what again I think the logic would be that it still requires, once you have a valid arrest warrant, the judgement left to the officer under an arrest warrant that the person is in the premises sought must be based upon probable cause. I don't think that is an optimum solution, I want to make myself clear, but for the purpose of this case and the issues presented, I don't think I have got to convince you that you need go further.

I would point out that the Court has amended Rule 41 of the Federal Rules of Criminal Procedure to provide for search warrants, not arrest warrants, when persons are being sought, without limiting it to third person premises. I can only say that there is logic to that amendment and it would be wrong for me to say anything other than that. But furthermore, if the Court had a desire to harmonize Rule 41, which at least you at times said implemented Fourth Amendment concerns, then the most sensible reconciliation of the difficult issue would be to require a search warrant so that Rule 41 would totally conform with what the Fourth Amendment requires, but I do not think that it is necessary in this case.

The prosecution -- Mr. Zimroth talks a great deal about the burden to police if you impose either type of requirement. I know that in the warrant context you heard that argument many times and you rejected it many times. You rejected it many times because you placed the importance of that warrant requirement in the constitutional scheme in a very high level, and when you combine that with the home, the premises, parts of the home, I think the prosecution should have an insurmountable burden in terms of policy arguments.

If we start with the premise that we are talking non-exigent circumstances, than I can see no weight at all to Mr. Zimroth's arguments that a warrant requirement imposed by this Court would be a burden to any legitimate concern of police officers.

If it is not exigent, circumstances are not exigent, then the police have time to do a number of things and I think these two cases pointed out -- in Riddick they had an awful lot of time to make a slight detour and get an arrest warrant.

QUESTION: In our Watson decision, certainly we didn't decide that on the basis that it would be just a terrible burden on the police to go get a warrant to arrest a man in a public place. We went on the tradition that it had always been done that way, and that is what the Constitution must have meant.

MR. HELLERSTEIN: I think in Watson you must have felt yourself freer to do it based on the fairly one-sided, almost exclusively so, history of the common law with respect to arrest. I think that at the very least, and I think the Court in Miller v. United States a long time ago, 1957, pointed out that the law with respect to arrest entries into the home was not letter clear.

QUESTION: Miller was a statutory case.

MR. HELLERSTEIN: Yes, that was section 3109. But in a footnote of Mr. Justice Brennan, in writing for the Court, acknowledged -- first of all, he pointed to Judge Prettyman's opinion in the Akaweno case where Judge Prettyman I think makes a very substantial brief that the common law was very one-sided our way. And if I had to argue I would, but I don't think that what was available to the Court in Watson, the common law going the other way, can possibly be available here, and it is not.

QUESTION: Don't you think it is quite important that under section 3109 Congress had given specific instructions to federal officers as to the precise, very precise manner in which the warrant was to be executed?

MR. HELLERSTEIN: That was with respect to knock and announce and --

QUESTION: It was more than that, announce their purpose and their authority and their identity --

MR. HELLERSTEIN: Purpose and authority, yes.

QUESTION: -- but I think the opinion said a few more words would have sufficed. They announced part of what the statute required but not all, if I recall correctly.

MR. HELLERSTEIN: I think the Court was quite clear in Miller that that was a very important intention by Congress in 2109, but what was not before the Court --

QUESTION: Congress expanded what the Constitution required.

MR. HELLERSTEIN: Well, the Court did not hold in Miller, as I understand it, Mr. Chief Justice, that it was construing the Constitution in terms of knock and announce. It was --

QUESTION: No, I say Congress expanded what the Constitution required and the officers had not met that expanded requirement.

MR. HELLERSTEIN: It may well be. It may well be, but that has nothing to do with the issue in this case in the sense of the question of being able to enter without a warrant. It was not presented.

The prosecution in closing out its brief, I don't think the arguments of a rush to get the warrant -- we are not talking about exigent circumstances which can be very substantial. It talks about such things as the rubber stamp, that if you hold that the warrant is required for a felony arrest within the home in this case, the magistrate is going to begin to rubber stamp these things.

I think that is entirely out of sync. It is not synchronized with what this Court feels about the role of the magistrates and the importance of the independent judgment of the magistrate.

Another argument that the prosecution makes is that if you require a warrant -- I call it the irrevocable arrest of the innocent argument, which Mr. Zimroth puts forth, that once a warrant is issued it must be executed, that if an officer gets a warrant that says you are directed to bring to the court this fellow, he must do so, but that is not true. It is not true under the New York law, and it is not true under any law that I know. If an officer gets information that undercuts the basis for that warrant, he isn't obligated to go and arrest an innocent man.

There are two arguments that the prosecution makes that --

QUESTION: But he is still authorized to arrest the man whom he now thinks is --

MR. HELLERSTEIN: But he doesn't have to do it. He can --

QUESTION: It is an authorization, not a command, that is your point.

MR. HELLERSTEIN: Yes, sir.

The last two arguments that Mr. Zimroth makes is that if you require a warrant you are going to reduce the scope of suppression hearings because there will be less for defense lawyers to do. And tied to that is the reduction of possible damage suits against officers because they now have warrants.

I should have thought of those arguments. I am sorry I didn't in my brief. But those seem to be exactly the kinds of arguments that should come as a logical consequence of the warrant -- it should be a desirable outcome. Why should we have to have extensive suppression hearings based on who did what, to whom, and if there is a warrant that a magistrate has passed upon? More importantly, why should police have to be at their peril with respect to making these judgements?

QUESTION: Wouldn't it just transfer all the focus of the suppression hearing from the grounds to the warrant to whether or not there were probable cause to enter the home though?

MR HELLERSTEIN: It has been my experience that hearings which are directed to controverting warrants, and my experience has been greater in the search warrant area, are much more limited, namely they really go to whether it is perjury in the underlying affidavits. They do not rehash all of the factual determinations which were presented to the magistrate unless there is a -- I think this Court has so held --

QUESTION: Well, Aguilar held more than that.

MR. HELLERSTEIN: Well, I think --

QUESTION: It held that a warrant --

MR. HELLERSTEIN: -- policy arguments simply do not support the source from which they come in my only point. That being the case, I would say none of the policy arguments are worth this Court declining to follow the logic of the decisions and to hold that a warrant is required in non-exigent circumstances for an arrest in the home.

Thank you.

MR. CHIEF JUSTICE BURGER: Mr. Zimroch.

ORAL ARGUMENT OF PETER L. ZIMROTH, ESQ., ON BEHALF OF THE APPELLEE

MR. ZIMROTH: Mr. Chief Justice, and may it please the Court:

Mr. Hellerstein is asking this Court to in a very drastic manner change the balance of accommodating interests that have been with us from the earliest of recorded history on this subject until relatively recently.

The accepted manner in which the lawfulness of an entry into a home to make an arrest of a felon was quite clear, and that is that the officers brought the defendant into custody and then the judicial system mobilized in a very substantial manner to test two things, first the factual predicate for the arrest, and, second, the manner of execution of the arrest.

This was a judgement of people who were very sensitive to the needs of privacy and in fact the very same people created the protections that subsequently became the protections of the Fourth Amendment with respect to search warrants. In fact, the system that I have outlined, if I may borrow the words of Mr. Justice Powell in the Carsten v. Pugh case, where he said there are indications that the framers of the Bill of Rights regarded it -- meaning this system that I have just outlined -- as the model of a reasonable seizure under the Fourth Amendment.

Mr. Hellerstein I think is simply incorrect when he says that there was a substantial dispute about this prior to the adoption of the Fourth Amendment. There were many disputes about the manner in which the lawfulness of arrests were to be tested, but those disputes were about the standards to be applied in the litigation after the defendant was brought into custody and not disputes about whether or not there should be a magistrate interposed in the on-going system of -- on-going investigation.

The entire -- the common law authorities and the framers of the Fourth Amendment recognized that this was an accommodation of competing interests, it was a substantial protection against illegal arrest in the home and elsewhere. There was an additional protection against illegal arrests in the home by the requirement that the officers knock and announce their authority, as the Chief Justice mentioned earlier, which is now law in most states, in many states by statute, and the purpose was to minimize the need for force, to give the people inside the ability to submit peacefully to the authorities of the officer, but again these standards were tested in litigation after the defendant or the subject was brought into custody.

The entire burden I think of Mr. Hellerstein's argument is that we have a search warrant requirement and therefore we must have an arrest warrant requirement. And if I may summarize the many reasons I think that those two powers and warrants are vastly different before I get into the argument.

In the first place, the community's interests are vastly different in the two kinds of powers. The effect on the law enforcement function are vastly different; and, thirdly, the search power is much more extensive and more intrusive than the arrest power and the need for a warrant requirement is much greater. These are the very reasons why the two powers have been treated differently for so much of our history.

Mr. Hellerstein says that there will be no burden on law enforcement if you interpose a magistrate before the arrest. This court has examined that argument twice relatively recently, once in Gerstein v. Pugh, where Mr. Justice Powell called this an intolerable handicap for legitimate law enforcement. That characterization was repeated in Watson both by the majority and then by Mr. Justice Powell in concurrence again where he said that the interposition of a magistrate will "severely hamper effective law enforcement," and in fact it would severely hamper effective law enforcement. Any one requirement will have to be seen from the perspective of the police officers who are going to have to live with this requirement.

Just as an example, where Mr. Hellerstein criticizes the police in Payton for not getting a warrant after the afternoon of January 14th, he says that they knew the name of the defendant and that they knew -- they looked at his building and he says they did nothing. He says they did nothing after that until the next morning.

Well, that is simply untrue. What they were doing is further investigation, the kind of investigation that should be fostered by this Court, and the police should not be diverted from that kind of investigation in order to go get a warrant which would be a very time-consuming process. In fact, what they were doing was trying to put together a photo array so that they could know what the defendant looks like and also what they were doing was to try to find out where the defendant was. Knowing where the defendant's apartment is is very different from knowing where the defendant is.

Here we have a defendant who two days earlier shot and killed the manager of a gas station and on that same night he goes to his friend and admits to the friend that he did it and also tells the friend that he is going "somewhere." This is the same defendant who must have known that two, perhaps three people in the gas station knew the defendant. It seems to me knowing the defendant's address in a circumstance like that is, as I say, very different from knowing where he is at any particular moment.

It also seems to me that that is exactly the kind of situation in which the police should be encouraged to do further investigation and should not be diverted from that investigation by the very time-consuming process in which a warrant would be.

QUESTION: How long does it take to get a warrant in New York?

MR. ZIMROTH: Mr. Justice Marshall, in this particular case, since there was no warrant requirement, there is nothing in the record; however, in a case --

QUESTION: But since you and I both know Manhattan, I wonder how long --

MR. ZIMROTH: I think it would be a very substantial amount of time. Can I go through for you the steps that the police would have to do to get a warrant, so you could see how substantial it would be?

The first thing the police would have to do from the moment they decide, well, now is the time we have to get a warrant, they would have to gather together all the facts. Now, in this particular investigation there were many police officers who were doing this investigation, not just one. They would have to gather those facts and put them into some presentable form to present to a prosecutor, not to a judge but first to a prosecutor. And the reason for that is that under New York law, as is true in some other states, you can not get an arrest warrant until you initiate the criminal prosecution. That is not a police decision, that is a prosecutorial decision.

So you have to take all of those facts and you have to go down to the prosecutor's office. Now, I have personally been involved in questioning police officers about their investigations. It is not a process which any responsible prosecutor would just slough off because it is the initiation of a criminal prosecution that is at stake, and the more complicated the investigation, the more complicated the questioning in --

QUESTION: Did he do all of this before he broke in the man's door?

MR. ZIMROTH: Your Honor --

QUESTION: Did he do all of this before he got the crowbars and tore the man's door off?

MR. ZIMROTH: No, sir, he did not. There was no warrant requirement.

QUESTION: Well, shouldn't he have?

MR. ZIMROTH: No, sir, he should not have because it --

QUESTION: He shouldn't have thought over very carefully as to whether he had the right man or not?

MR. ZIMROTH: Of course he should have thought very carefully whether he had the right man.

QUESTION: I thought so. But after that couldn't he have just dropped by the magistrate's office?

MR. ZIMROTH: Absolutely not. He cannot drop by the magistrate's office. He has to first drop by the prosecutor's office and --

QUESTION: Well, did he drop by the prosecutor's office before he tore the man's door down?

MR. ZIMROTH: No, sir.

QUESTION: So he can tear the man's door down without going by the -- not only without getting a warrant, but he doesn't even have to check with the prosecutor to tear a man's door down.

MR. ZIMROTH: Under the law --

QUESTION: Isn't that your theory? Isn't that your theory of the law in New York?

MR. ZIMROTH: Absolutely, it is, yes. After he goes to the prosecutor's office in order to get a warrant, there is still much more that has to be -- then at that time you first get into the problem --

QUESTION: May I just be sure I follow your argument. Are you saying in substance that there are a good many cases in which police officers think they have probable cause but the prosecutor says there isn't enough here to justify a warrant?

MR. ZIMROTH: No, sir, but there are cases in which the prosecutor would say you have probable cause but I am not going to authorize the initiation of a criminal prosecution because I don't think we have enough to convict.

QUESTION: Then in those cases would it be appropriate for the police officer to go out and arrest him?

MR. ZIMROTH: Yes, it might. It might, because, for example, one reason might be that the typical situation is if there has been a photo array, as there was in this case. We know, as prosecutors, that photo arrays, although there may may not be probable cause, are not the most reliable in terms of convincing a jury. The police may have to get the defendant into custody first so that they can have a lineup. In order to have a lineup and if the complainant picks the defendant out of the lineup, then you obviously have a much stronger case.

So all I am suggesting is that this warrant process is not a one, two, three affair. It is a very time-consuming situation --

QUESTION: I don't know that you finished really. You say that it is a several step process, and I think you have just given us the first step, you go to the prosecutor. I assume you persuade the prosecutor that there is enough evidence for him to initiate a criminal prosecution. Then what?

MR. ZIMROTH: Then you have all of the paper work attendant to filing the case in court, and if you are lucky the court will be open at that time. You can't get --

QUESTION: This is a matter of New York law, a matter of New York law, all of this has to precede the issuance of an arrest warrant?

MR. ZIMROTH: Yes, sir.

QUESTION: Is that your point?

MR. ZIMROTH: Yes, sir. You can't --

QUESTION: Constitutionally it doesn't.

MR. ZIMROTH: No.

QUESTION: It is just a matter of New York law.

MR. ZIMROTH: Yes, but --

QUESTION: Practice and procedure.

MR. ZIMROTH: It is a matter of New York law which says that you can't get an arrest warrant until you have a criminal action that is begun.

QUESTION: Initiated.

MR. ZIMROTH: Initiated, that's true.

QUESTION: So then the prosecutor files the --

MR. ZIMROTH: I don't know how many other states have that, but I do know that New York is not alone in this.

QUESTION: So he files the information -- New York does not required grand jury indictment, does it?

MR. ZIMROTH: For a felony, yes, it has to be --

QUESTION: For the purposes of a search warrant, it can be just information.

MR. ZIMROTH: For an arrest warrant, yes.

QUESTION: I mean an arrest warrant.

MR. ZIMROTH: Yes.

QUESTION: And then information is filed and then what happens?

MR. ZIMROTH: Then the case would go to a grand jury. Oh, you mean --

QUESTION: To get an arrest warrant.

MR. ZIMROTH: To get an arrest warrant, you go into court and you have to docket the case and then you have to wait your turn on the calendar, you go before a judge and the statute then says --

QUESTION: Who is "you" now? Who has to wait?

MR. ZIMROTH: The prosecutor and the policeman --

QUESTION: The prosecutor or the policeman?

MR. ZIMROTH: It will be a prosecutor probably and a policeman. Then you go into court and if the judge -- who by the way is doing a lot of other things at that time -- will see you, he then has the option to question the police officer or question the basis. Prior to this criminal procedure law, there was some suggestion in the law that he was required to go beyond just what was before him on paper and question the police officer, and then if he is satisfied that there is probable cause he would issue the warrant.

QUESTION: And only a judge can issue a warrant in the state of New York? Do you have magistrates or --

MR. ZIMROTH: Well, the magistrates are the criminal court judges.

QUESTION: Period, there are no other magistrates?

MR. ZIMROTH: In New York City, I am pretty sure that is true.

QUESTION: Are you telling me there are no magistrates in New York City?

MR. ZIMROTH: I am saying that the magistrates are the criminal court judges, which is --

QUESTION: Aren't there magistrates holding magistrate court --

MR. ZIMROTH: Those courts have been --

QUESTION: It is the same man who is now a judge?

MR. ZIMROTH: Yes, sir, the same man is now a judge.

QUESTION: Mr. Zimroth, the Second Circuit doesn't seem to be too worried about the impact of such a constitutional holding on police practices.

MR. ZIMROTH: Yes, they are.

QUESTION: What?

MR. ZIMROTH: Yes, they are, and --

QUESTION: I know, but they know that in habeas corpus they are going to be facing this same issue out of the New York courts. I supposed they are not going to say that it is unconstitutional for federal marshalls or for the FBI to arrest without a warrant, and yet it is all right for a state officer.

MR. ZIMROTH: I can't account for their --

QUESTION: And certainly the people who have joined in those opinions in the Second Circuit have been -- they are New York lawyers.

MR. ZIMROTH: But their experiences are really with a different system, Your Honor. I was an Assistant United States Attorney and now I am a state prosecutor. There are a lot of differences, the resources are much different --

QUESTION: Have the Second Circuit or the federal courts applied the Second Circuit rule in federal habeas corpus proceedings?

MR. ZIMROTH: I am not aware of any, Your Honor.

QUESTION: Well --

MR. ZIMROTH: I am not aware of any decision and also my colleague points out to you that I think they would be foreclosed from applying this rule in federal habeas corpus proceedings --

QUESTION: Stone.

MR. ZIMROTH: Stone v. Townley. So it is a very different --

QUESTION: Meanwhile, while all of these things are going on, what is happening out at the ranch, as it were?

MR. ZIMROTH: That is exactly the problem.

QUESTION: What is happening?

MR. ZIMROTH: Well, what is happening is that the defendant is --

QUESTION: Well, I suppose they could get four or five policemen and surround the house, couldn't they?

MR. ZIMROTH: They could do that, but on the other hand it seems to me that it would be very wrong for the court require that kind of conduct. It is dangerous --

QUESTION: I am just asking you what they would do to prevent the man from getting out.

MR. ZIMROTH: Realistically --

QUESTION: If he then tries to walk out of the house, they can, of course, arrest him, I take it.

MR. ZIMROTH: Yes. That is required in a stakeout, and I think that is a very dangerous thing; whether they would do it, I don't know. I suppose in some cases they would and in other cases they would --

QUESTION; It would depend upon the severity of the crime, I suppose?

MR. ZIMROTH: And the manpower of that particular squad. That is another problem with this arrest warrant requirement, because it is going to be applied to in the neighborhood of 22,000 police departments around the United States and also in an infinite variety of investigations, so tat really it is unpredictable in any particular case, it is unpredictable.

QUESTION: In this case, could he have gotten it in 18 hours?

MR. ZIMROTH: Could he have gotten the warrant in 18 hours?

QUESTION: Yes, sir.

MR. ZIMROTH: I assume so.

QUESTION: Well, why didn't he?

MR. ZIMROTH: The facts --

QUESTION: The facts were given to him at noon on one day and they broke into his place at 7:30 the next morning.

MR. ZIMROTH: The facts were not given to him at noon on one day. They were given to him at noon on the day before, but they had one person saying that he recognized the man who did the job --

QUESTION: Didn't he take them to the place and show them the building?

MR. ZIMROTH: That was much later.

QUESTION: It was?

MR. ZIMROTH: Yes, sir.

QUESTION: How much later?

MR. ZIMROTH: That was well into the afternoon, into the evening.

QUESTION: In a minute he would be where he could get it to a magistrate.

MR. ZIMROTH: Excuse me?

QUESTION: In a minute, if a guy is as expeditious as he was, he could have gotten a warrant.

MR. ZIMROTH: The issue isn't really --

QUESTION: The difference is very simple, with the warrant the man keeps his door and his privacy. Without the warrant, he loses his door.

MR. ZIMROTH: Not necessarily. The warrant does not protect privacy in that manner. You can butt down the door with a warrant, too. What would have happened if the police had a warrant in this case, they would have busted down the door in exactly the same way, because they saw --

QUESTION: But they might not have gotten the warrant. They might not have been able to convince the magistrate that they were entitled to it. Wouldn't he have kept his door then?

MR. ZIMROTH: Well, if you say they wouldn't have gone to arrest this man, obviously they wouldn't have broken down his door, that's true. I don't think that it is fair to suggest, however, that the requirement will somehow be a quantum of additional protection to what the residents already have. I mean it seems to me you have to be concerned with the fact that you are talking about thousands and thousands of cases and the possibility of trivializing the warrant process.

QUESTION: Mr. Zimroth, do either of the respondents challenge the probable cause for arrest in these cases?

MR. ZIMROTH: No, sir. Nor, I heard Mr. Hellerstein say, was there probable cause to believe that the defendant was in a particular location which is, by the way, a requirement under the state law, by statute.

QUESTION: Even though it is his own residence?

MR. ZIMROTH: You need --

QUESTION: I can understand the requirement of probable cause to believe that he is somewhere else --

MR. ZIMROTH: No, sir.

QUESTION: -- but does state law require probable cause to believe that he is in his own home?

MR. ZIMROTH: Absolutely. It is in some ways one of my points, more protection than a warrant requirement would be.

QUESTION: Except that a warrant requirement requires the disinterested third person to evaluate probable cause, that is the protection.

MR. ZIMROTH: Probable cause to believe that the defendant committed the crime, it is not probable cause to believe that the defendant is in a particular location which is required in the state law which is, as I say, more protective than the warrant requirement would be, assuming that it is an arrest warrant -- which, by the way, Mr. Justice Rehnquist asked this question -- every court that I am aware of has held that there needs to be a warrant requirement, says there has to be an arrest warrant requirement. The Prescott case, which is a Ninth Circuit case, that Mr. Hellerstein refers to, was a case of an entering of a third party's residence. Although I do concede that there is dictum in that case which suggests that the Ninth Circuit would require a full blown --

QUESTION: It is based on dictum when it says the warrant, whatever it is, the warrant must describe the place to be searched and the thing to be seized, which in this case is a person.

MR. ZIMROTH: I agree. I mean that particular entry I think was in the girl friend's house of the defendant, it wasn't the defendant's apartment or house in that case.

QUESTION: Well, what do you conceive to be the real practical difference, if you want to talk practicalities, between the jurisprudence that your prudential approach on persons and things? You say historically you don't need a warrant to enter a house to make an arrest, but I take it -- I guess you were going to say because people are so mobile and can escape. But how about things? They can leave the person with the person.

MR. ZIMROTH: It is not only that the people are mobile and can escape, but in many situations when you talk about arrest, it is fair to suppose that the defendant or suspect knows of the police interest before the police -- at the very same time that the police are examining the evidence, it is fair to suppose that the defendant knows of the police interest makes it a very volatile situation which is very different from the search warrant situation. If you take take eavesdropping, for example, which is the arch typical search warrant situation, the --

QUESTION: Yes, but that would lead, let's say, that you wouldn't need a warrant to go in a house to get a gun. You think the gun is in the house, you can get a search warrant, you have probable cause but you need the warrant, although the man that you suspect could easily leave the house with the gun.

MR. ZIMROTH: I am not suggesting --

QUESTION: You just don't have probable cause to arrest him yet, you have probable cause to believe the gun is in the house though.

MR. ZIMROTH: I am not suggesting that there won't be any situations in which a search would not be volatile. Obviously there will be such situations, and I am talking about as a gross matter, and that is why the judgment was made.

There is a second very important point and that is the point of numbers. Take New York City, for example. In New York City last year, there were 107,000 felony arrests. In New York County, which is Manhattan, one of the five counties of New York City, there were 36,000 felony arrests. There were in the order of 600 search warrants issued in New York County last year.

QUESTION: So you suggest that even if there are a lot of cases, when you think that a warrant might reasonably be required, you just say that you need a broad rule that people can -- a bright line of some kind.

MR. ZIMROTH: Absolutely, because --

QUESTION: Do you know how many of those arrests were in public places, or do you know how many of them were under exigent circumstances?

MR. ZIMROTH: No, I don't. But --

QUESTION: Wouldn't you guess that a large proportion were one or the other or both?

MR. ZIMROTH: No. I do know that Mr. Hellerstein cited a study -- and we cited the same study in our brief -- that finds that fully half the felony arrests in urban centers in this country take place two hours or more after the commission of a crime. So I think it is fair to say that the police officers do not necessarily know in advance where to find the defendant. So those are the situations, at least that is the universe from which the police officers are going to have to go get a warrant because they are not going to know in advance where to find him.

QUESTION: Isn't part of the montage or whatever you want to call it, the argument analogous to Mr. Justice Stewart's comment in the earlier case that perhaps the most logical thing to do in connection with the Fifth Amendment is to ask the suspect did you do it or not, and if not tell us where you were and so forth? It is logical, but the Fifth Amendment prohibits it, and there are lot of things in the Constitution that are prohibited that perhaps if we were to reexamine them today we wouldn't necessarily incorporate. But by the same token --

MR. ZIMROTH: What it means by its terms is it talks about reasonableness.

QUESTION: Yes, but by the same token it derives historical antecedence and if there are a long chain of historical antecedents perhaps you would say that logically one situation may not be too different from another, but it has been long established that you need probable cause to get a search warrant for a gun in a house and the contrary may be true if --

MR. ZIMROTH: Absolutely, I think they are both true, but it is not only historical antecedence, I think there is great logic to it, and the logic of the difference between the way that the two situations are treated is, as I have suggested that the arrest situation is much move volatile, also the community's interest in the two situations is very different.

Obviously, it is very important for police officers to gather evidence to convict someone of a crime, but that interest it seems to me palls next to the interest of the community in getting the defendant into custody so that the civilizing processes of law can be brought to bear on his particular case, so guilt or innocence can be decided by a court. There is no -- in my judgment, there is no law enforcement or community interest that is greater than that, and that is another reason why -- and there is a third reason why -- and maybe I am up to the fourth or fifth reason why there is a big difference, and that is that the power to search is a much broader power. Evidence of a crime can be anything, it can be anywhere, and it can be in anybody's custody, especially now.

The need for a requirement, even independent of the finding of probable cause, to limit the scope of the search, to tell the police officer what he can look for and where, and also to tell the subjects of the search what can be looked for and where is crucially important, and that is very different from the arrest power which is by its nature very, very limited. It is obvious to everybody concerned, you don't need a warrant to tell police officers what the object is. It is one particular person, and what to do with that person is to bring him before a court, and those are some of the reasons for the historical difference, Mr. Justice Rehnquist.

And unless there are any further questions --

QUESTION: Well, you make a point in your supplementary brief that I suppose would lead to the consequence that even if we decide against you, our decision should be prospective only?

MR. ZIMROTH: It should not apply to this particular case.

QUESTION: It should not apply to these cases.

MR. ZIMROTH: Yes, sir.

QUESTION: Relying, as you do, upon a decision of the Court late last term.

MR. ZIMROTH: Among others.

QUESTION: Well --

MR. ZIMROTH: For that reason, we made that point in our --

QUESTION: Michigan v. DeFillippo.

MR. ZIMROTH: Yes. We made that some argument in the --

QUESTION: In your original --

MR. ZIMROTH: -- in the original brief, but we just updated it withe DeFillippo and --

QUESTION: You haven't addressed yourself orally to that point at all.

MR. ZIMROTH: No, sir. What I can say about that, Your Honor, is that in 1970, when these officers made entry into this apartment, there was almost nothing that they could have seen around them that would have led them to believe that they should not follow the statute that they were following. That statute had been on the books for a hundred years, it was not a dead letter, it was part of the living law of the state of New York. It was not a jarring exception. Thirty out of thirty-six states that had legislated on this subject had precisely the same authorization. There wasn't a hint in anything in this Court that any sort of that conduct was illegal in any way.

QUESTION: Well, there were hints from this Court, weren't there, in 1970?

MR. ZIMROTH: Certainly one, and that is Coolidge.

QUESTION: How about Jones.

MR. ZIMROTH: Jones was a nighttime infringement, and the Court was very specific --

QUESTION: When was Warden v. Hayden decided?

MR. ZIMROTH: Warden v. Hayden was previous, but I think it is fair to say that it wasn't until -- wasn't it previously -- well, I think it is fair to say that it wasn't until your decision in Coolidge --

QUESTION: You submit that there were no hints --

MR. ZIMROTH: That was a hint.

QUESTION: Yes.

MR. ZIMROTH: So --

QUESTION: Well, what is New York law said -- what if a statute of New York said in this state no warrants of any kind shall be required for any searches and seizures of any kind, the law had been clear for a hundred years?

MR: ZIMROTH: There is no law enforcement official in this country who would not tell a police officer, I don't care what that statute says, you had better watch out, there is trouble ahead if you obey that statute. If these police officers had come to a group of law enforcement officials and professors of law and judges at that time and said, what should we do, shall we follow this statute, I think what those people would have said is absolutely, it is the law and --

QUESTION: Well, you are employees, you are officers of the state of New York and that is the legislature of the state of New York. That is very natural advice to give. So it would also I guess with my hypothetical statute.

MR. ZIMROTH: No, sir, not true. For example, myself as a prosecutor, if a police officer came to me in that situation that you posited, I would say -- probably I would say don't follow the statute, but if I didn't say that, I would at least say follow it at your risk, and I wouldn't have said that in 1970 in this situation, and I don't think anybody else would have said it, either.

QUESTION: Well, it doesn't apply to this case because they didn't go to any official.

ORAL ARGUMENT OF WILLIAM E. HELLERSTEIN, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

MR. HELLERSTEIN: I have nothing further, sir.

MR. CHIEF JUSTICE BURGER: Very well.

QUESTION: Mr. Hellerstein, I have a question, Mr. Chief Justice, if I may.

MR. CHIEF JUSTICE BURGER: By all means.

QUESTION: Do you agree with him about how long it takes to get a warrant?

MR. HELLERSTEIN: Not at all.

QUESTION: I didn't think you did.

MR. HELLERSTEIN: First of all, just to answer that, Mr. Zimroth is talking within the context of our existing statutory framework that says the court will only give you warrants when you commence prosecution, you have to see the prosecutor. But that isn't what this case is about. We are police officers, can get warrants without having to see the prosecutor as they do in those jurisdictions.